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IN THE HIGH COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

CASE NO. 9020/2003

In the matter between:

AMAZULU FOOTBALL CLUB

(PROPRIETARY) LIMITED APPLICANT

AND

TAUYA MREWA FIRST RESPONDENT

THE SHERIFF OF THE HIGH COURT,

DURBAN NORTH SECOND RESPONDENT

(heard at Durban on 18 August 2005)

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J U D G M E N T

(delivered on 8 December 2005)

___________________________________________________________________

BALTON J:

This is an application wherein the applicant seeks an order rescinding and setting aside the judgment granted under case number 9020/2003 on 6 December 2004.

Default judgment was granted in favour of the first respondent against the applicant on 6 December 2004 for, inter alia, payments of the sums of R312 817,50 and R263 452,50.

In paragraph 7 of the founding affidavit the applicant alleges that the application for rescission is in terms of rule 45A of the Uniform Rules of Court. This rule is not applicable in the circumstances of this case.

An order of court can only be set aside under rule 42¹, rule 31(2)(b)², on appeal or on common law grounds.

In the circumstances of this case rule 31(2)(b) is not applicable as the pleadings had already closed and neither does the application fall within the parameters of rule 42(1). The applicant’s claim for rescission of the judgment must thus be considered in terms of the common law which empowers the Court to rescind a judgment obtained on default of appearance provided sufficient cause therefore has been shown³.

In CHETTY v LAW SOCIETY, TRANSVAAL⁴ the Appellate Division had occasion to consider the requirement of “sufficient cause”. MILLER JA stated that:

“… The term ‘sufficient cause’ (or ‘good cause’) defies precise or comprehensive definition, for many and various factors require to be considered. (See Cairn’s Executors v Gaarn 1912 AD 181 at 186 per INNES JA.) But it is clear that in principle and in the long-standing practice of our Courts two essential elements of ‘sufficient cause’ for rescission of a judgment by default are:

1. that the party seeking relief must present a reasonable and acceptable explanation for his default; and

2. that on the merits such party has a bona fide defence which, prima facie, carries some prospect of success. (De Wet’s case supra at 1042; P E Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A); Smith N O v Brummer N O and Another; Smith N O v Brummer 1954 (3) SA 352 (O) at 357-8.)

It is not sufficient if only one of these two requirements is met; for obvious reasons a party showing no prospects of success on the merits will fail in an application for rescission of a default judgment against him, no matter how reasonable and convincing the explanation of his default. And ordered judicial process would be negated if, on the other hand, a party who could offer no explanation of 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 reasonable prospects of success on the merits.”⁵

Further in MUTEBWA v MUTEBWA AND ANOTHER⁶ JAFTA J held that:

“Under the common law as well, the applicant for rescission must show good cause before a judgment can be rescinded. In NYINGWA’S case (supra) WHITE J, after reviewing the authorities came to the following conclusion at 511J – 512A:

‘It follows that any judgment, including a summary judgment, can be rescinded under the common law. If the merits of the dispute were considered before summary judgment was granted, rescission can follow only on the grounds set out in the Childerley case; if the merits were not considered and the judgment was granted by default, the grounds for rescission are virtually unlimited, and the only prerequisite is that ‘sufficient cause’ therefore must be shown. The term ‘sufficient cause’ and ‘good cause’ mean the same thing. The only difference is that rule 31(2)(b) refers to good cause ‘where as under common law reference is made to sufficient cause’. The requirements therefore are exactly identical.”

It is accordingly necessary to consider whether the applicant has presented a reasonable and acceptable explanation for his default and whether it has a bona fide defence on the merits which prima facie carries some prospects of success.

However prior to dealing with whether the judgment ought to be rescinded it is firstly necessary to consider whether condonation of the late filing of the application for rescission should be granted.

(1) APPLICATION FOR CONDONATION

In casu the judgment was granted on 6 December 2004 and the application for rescission was launched on 23 June 2005, that is, just over six months after the judgment was granted. The common law does not stipulate the period within which an application for rescission should be brought. It is trite law that the application must be instituted within a reasonable period.

In WOLGROEIERS AFSLAERS (EDMS) BPK v MUNISIPALITEIT VAN KAAPSTAD⁷ MILLER JA held that:

“(Dit) word beweer dat die aansoekdoener nie binne redelike tyd die saak by die Hof aanhangig gemaak het nie moet die Hof beslis (a) of die verrigtinge wel na verloop van ‘n redelike tydperk eers ingestel is en (b), indien wel, of die onredelike vertraging oor die hoof gesien behoort te word. Weereens, soos dit my voorkom, met betrekking tot (b), oefen die Hof ‘n regterlike diskresie uit, met inagneming van al die relevante omstandighede.”

The Court further held that:

“By gebrek aan statutêre of ander wettige voorskrifte rakende die prosedure wat gevolg moet word, word die prosedure, wat tydsbeperking insluit, deur die Howe self voorgeskryf. Wat wel deur ons Howe voorgeskryf is, is dat verrigtinge binne redelike tyd ingestel moet word en, soos ek reeds genoem het, staan dit die Hof vry om, na gelang van omstandighede, en by die uitoefening van sy diskresie, onredelike vertraging oor die hoof te sien in geskikte gevalle.

…

Terwyl, soos ek reeds aangedui het, die vraag of daar onredelike vertraging was ‘n feitebevinding verg, berus die antwoord op die vraag of onredelike vertraging oor die hoof gesien behoort te word by die regterlike diskresie van die Hof, uitgeoefen met inagneming van alle tersaaklike omstandighede en faktore.”⁸

In SETSOKOSANE BUSDIENS v NASIONALE VERVOERKOMMISSIE⁹ the Court held that a reasonable time depends on the circumstances of the case.

The principle has been firmly established that, in all cases of time limitations, whether statutory or in terms of the rules of court this Court has an inherent right to grant condonation where principles of justice and fair play demand it and where the reasons for non-compliance with the time limits have been explained to the satisfaction of the court¹⁰.

In MELANE v SANTAM INSURANCE CO LTD¹¹ HOLMES JA held that:

“In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated : they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s interest in finality must not be overlooked.”¹²

In MBUTUMA v XHOSA DEVELOPMENT CORPORATION LTD¹³ TRENGROVE AJA held that :

“Condonation may be granted under Rule 13 of the Rules of this Court if the applicant has satisfied the Court that sufficient cause has been established for granting him relief from the operation of the Rules; and, in deciding whether sufficient cause has been shown, the Court will consider all the relevant facts and circumstances of the particular case, such as the degree of non-compliance with the Rules, for example the length of the delay, the explanation therefor, the importance of the case, the prospects of success, the respondent’s interests in the finality of his judgment and the avoidance of unnecessary delay in the administration of justice; see, for example S. v. Yusuf, 1968 (2) S.A. 52 (A.D.), and Kgobane and Another v. Minister of Justice and Another, 1969 (3) S.A. 365 (A.D.) at p. 369D-H. However, in each case the question is whether sufficient cause has been shown for the relief sought and, as was said by INNES, J.A., in Cairn’s Executors v. Gaarn, 1912 A.D. 181 at p.186 :

‘But on the other hand the length of the delay and its cause must always be important (in many cases the most important) elements to be considered in arriving at a conclusion. It would be quite impossible to frame an exhaustive definition of what would constitute sufficient cause to justify the grant of indulgence. Any attempt to do so would merely hamper the exercise of a discretion which the rules have purposely made very extensive, and which it is highly desirable not to abridge. All that can be said is that the applicant must show, in the words of COTTON, L.J. (In re Manchester Economic Society, 24 Ch.D. at p. 498), ‘something which entitles him to ask for the indulgence of the Court’. What that something is must be decided upon the circumstances of each particular application.’ ” ¹⁴

Pursuant to the grant of judgment the second respondent made an attachment of certain assets of the applicant in terms of a notice of attachment dated 2 January 2005. The former manager of the applicant, Mr Mike Mtengwana, approached the applicant’s present attorneys of record Masipa-Nepaul Inc, to apply for rescission of the judgment against the applicant. However, no file of documents was handed to the attorney. The applicant points out that there has been significant dissension of rank amongst senior management persons employed by the applicant as a consequence of mismanagement by certain of these persons. It attributes this factor to the failure of the applicant to properly instruct the erstwhile attorneys Taylor and Findlay, to prosecute its defence on 6 December 2004.

The deponent to the affidavit on behalf of the applicant, Mr Onke Kanate Bikitsha states that at the time when judgment was granted he was not actively involved in the litigation as he had left that to the senior management who are no longer employed by the applicant.

On 20 January the applicant’s attorneys requested the first respondent’s attorney to stay the execution until the finalisation of the application for rescission. The attorney also requested the applicant’s file from the previous attorneys of record, Taylor and Findlay. They replied that the file was in the possession of the applicant. Subsequently the former manager of the applicant handed some documents to the applicant’s attorney but failed to provide full and proper instructions to him regarding the rescission application. The applicant then received a notice that the sale of the goods was set down for 13 April 2005. Only then Mr Bikitsha became aware that default judgment had been granted against the applicant and became involved in the matter. He requested Masipa-Nepaul to seek a resolution of the matter. However, the applicant’s attorney was involved in a triple murder case which was due to commence on 18 April 2005 and as a consequence of this he was not able to prepare the application papers for the rescission of the judgment within the limited time available.

The applicant’s attorney wrote to the first respondent’s attorney and advised him, inter alia, that he was unable to finalise the application for rescission papers due to a three week High Court trial which was due to commence on 18 April 2005. He further requested that the sale be stayed pending the outcome of the application for rescission. The first respondent’s attorney replied that it was not amenable to stay the sale in execution and suggested that a request would be made to the first respondent that the sale be stayed upon the applicant furnishing suitable security for payment of all amounts owing under the writ of execution and all costs incurred pursuant thereto and should the applicant not provide the security requested the application for the stay of the sale would be opposed. The applicant’s attorney made a proposal concerning the security which was unacceptable to the first respondent’s attorney and advised the applicant that it would direct the second respondent to proceed with the sale.

After consideration of the matter the applicant decided not to seek a stay of the sale as the delay in bringing the application for rescission proved to be a hurdle which it might have been criticised for. The applicant’s attorney then became engaged in a triple murder trial from 18 April to 29 May 2005 and was unavailable for consultations due to other professional commitments.

The first respondent then levied further execution against the applicant by attaching the applicant’s right, title and interest in a Mercedes Benz bus by issuing garnishee proceedings against the attachment of grants payable to the applicant.

The applicant further alleges that it had obtained the services of senior counsel to draft the plea and as a consequence of the ex-manager of the applicant failing to, inter alia, furnish the applicant’s erstwhile attorneys with proper and complete instructions they withdrew as such. Mr Bikitsha was not aware of this and neither was he advised of it.

The applicant’s main reasons for the delay are

(1) mismanagement by applicant’s employees and the failure to properly instruct Taylor and Findlay; and

(2) the unavailability of applicant’s attorney due to his involvement in a long trial.

Neither of these reasons are acceptable. The first respondent cannot be blamed for mismanagement of the applicant’s employees.

The applicant’s acceptance of the sale of execution also does not assist it any further. The applicant was aware of the judgment as early as January 2005 and the application was only launched on 23 June 2005. The applicant was also aware that time was of the essence and this is borne out in paragraph 43 of its founding affidavit:

“After consideration of the matter, the applicant decided not to seek a stay of the sale as the unfortunate time delay in bringing the application for rescission proved to be a hurdle which it might have been criticised for.”

The applicant allowed the sale to continue thus indicating an acceptance of the judgment.

The applicant further states in the founding affidavit that:

“(45) The First Respondent has since then levied further execution against the Applicant by:

1. Attaching Applicant’s alleged right, title and interest in and to Mercedes Benz mini bus; and

2. Issuing garnishee proceedings against the Premier Soccer League for the attachment of grants payable to the Applicant.

47. The garnishee prejudices the Applicant financially and thereby effects its operations.”

It appears that the issue of the garnishee proceedings prompted the applicant out of its slumbers. By accepting the sale in execution the applicant in fact accepted the judgment. I fail to understand the basis upon which this Court is now called upon to set aside a judgment when the sale in execution was allowed to proceed. This on its own mitigates against any indulgence being granted by this Court. I am accordingly not satisfied that there is a reasonable and acceptable reason for the delay.

However, the explanation does not end there. The applicant alleges that the unavailability of its attorney was another reason for the delay in instituting the application for rescission. If the applicant’s attorney was not available because he was involved in a long trial the applicant could have sought the assistance of another attorney, alternatively the applicant’s attorney could have instructed counsel to settle the papers.

In SALOOJEE & ANOTHER, NN.O. v MINISTER OF COMMUNITY DEVELOPMENT¹⁵ the Court of Appeal considered the factors which the Court would consider sufficient to justify it granting an indulgence as regards delays in instituting proceedings timeously and which is apposite in casu. STEYN CJ held that¹⁶:

“There is a limit beyond which a litigant cannot escape the result of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. …

The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are. (Cf. Hepworths Ltd v Thornloe and Clarkson Ltd., 1922 T.P.D. 336; Kingsborough Town Council v Thirlwell and Another, 1957 (4) S.A. 533 (N)). A litigant, moreover, who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands of it. If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney (cf. Regal v African Superslate (Ptd.) Ltd., supra at p.23 i.f.) and expect to be exonerated of all blame; and if, as here, the explanation offered to this Court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney.”¹⁷

Further, in TSHIVHASE ROYAL COUNCIL v TSHIVHASE; TSHIVHASE v TSHIVHASE¹⁸ NESTADT JA held that:

“This Court has often said that in cases of flagrant breaches of the Rules, especially where there is no acceptable explanation therefor, the indulgence of condonation may be refused whatever the merits of the appeal are; this applies even where the blame lies solely with the attorney (see, for example, P E Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799D – H).”

The Courts have consistently further held that pressure of work of an attorney is no ground for relief¹⁹.

In KGABONE AND ANOTHER v MINISTER OF JUSTICE AND ANOTHER²⁰ RUMPFF JA held that:

“The attorney for the applicants attributed his neglect to observe the Rules of this Court and to ensure that his instructions were carried out to his working under pressure and being away from his office. When an attorney tells this Court, in effect, that he is too busy to study the Rules of this Court and to supervise the prosecution of an appeal, his explanation is quite unacceptable. In my view this one is one of the worst cases of disregard of the Rules of this Court that have come before it.

…

In exercising its discretion to condone any failure to comply with its Rules, this Court, as has been often stated before, will consider all the relevant facts, such as, in the type of case as is the present, the degree of lateness, the gravity of the slackness or negligence on the part of the persons responsible for the omission, the importance of the case and the prospects of success on appeal.”

Further in UNITED PLANT HIRE (PTY) LTD v HILLS AND OTHERS²¹ CORBETT JA held that:

“As to the dilatoriness of the applicant’s attorney, he candidly accepts responsibility for the delay of three weeks in making the application for condonation. He says that normally it would not have taken him more than a week to prepare it. However,

‘due to extreme pressure of work, including the preparation for two Supreme Court trials and the attendances at Court and the necessity to deal with four urgent applications to the Supreme Court, these papers have not been prepared until now’.

The result was that the application for condonation was filed and served only on 26 May 1975. As to that, as a matter of humanity one has a measure of sympathy with any overworked practitioner; but as a matter of justice, there is scant reason why this should be allowed prejudicially to set the other side’s teeth on edge; see Kgobane and Another v. Minister of Justice and Another, 1969 (3) S.A. 365 (A.D.) at p.369B.”²²

The reason for the delay due to the attorney’s pressure of work is accordingly no excuse. The application was in the circumstances of this case not launched within a reasonable time period and the applicant has failed to provide an acceptable explanation for the delay. The applicant chooses its attorney of record and if the attorney was not available due to pressure of work the applicant could have engaged the services of another attorney. I am not satisfied that the applicant has provided sufficient cause for condonation to be granted.

The only reason provided for the default judgment being granted is the mismanagement by the applicant’s employees and the failure to properly instruct Taylor and Findlay, the applicant’s erstwhile attorneys. This too is unacceptable.

(2) THE APPLICANT’S DEFENCE TO THE FIRST RESPONDENT’S CLAIM.

The applicant alleges that the first respondent’s claim relates to a contract of employment between the applicant and the first respondent on 13 July 2001 which commenced on 1 July 2001 and which was to terminate on 30 June 2004. A further oral agreement was concluded in February 2003 relating to the payment of arrears to the first respondent and the first respondent accepted a reduced payment in his salary. Subsequently, the first respondent obtained a clearance certificate from the applicant which in the soccer fraternity is seen as a termination of the employment contract with the relevant soccer club.

The first respondent then became employed by Bushbucks Football Club (Pty) Ltd (“Bushbucks”) in terms of a written contract from 1 July 2003 to 30 June 2005. At the time when the applicant’s plea was delivered it was unaware that the first respondent was employed by Bushbucks and earning an income. The applicant alleges that it accordingly has a bona fide defence.

In the replying affidavit the first respondent is adamant that he complied with the terms of his agreement but that the applicant failed to comply with its terms of the agreement in respect of his employment contract and that as a result thereof monies were due to him. He further alleges that he made settlement proposals to the applicant concerning his outstanding salary and agreed to a reduced salary for the remainder of 2002 to 2003 in an amount of R8 000,00 per month and that if the applicant were again promoted to premier league his monthly salary would revert to the original amount of R24 000,00. However, no finality was reached on this proposal and no agreement was drawn up. When the applicant was promoted in the league he expected them to honour their contractual obligations for 2003 to 2004. However, the applicant did not do so. He did not terminate his contract as the applicant did not help him find employment afterwards, he had to look to for employment on his own. As a result of the dispute he was forced to look to a club in the lower divisions and his earning capacity was reduced. At Bushbucks he earned half of what he would have earned with the applicant.

In P E BOSMAN TRANSPORT WORKS COMMITTEE AND OTHERS v PIET BOSMAN TRANSPORT (PTY) LTD²³ MULLER JA stated that:

“In Immelman v Loubser en ‘n Ander (supra at 824C) the following is stated:

‘Redelike vooruitsigte op sukses by appèl is natuurlik ook ‘n belangrike oorweging. Maar hoewel dit ‘n belangrike oorweging is, is dit nie noodwending in elke geval ‘n deurslaggewende oorweging nie’

and reference was made to the following decision: Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532 and Kgobane and Another v Minister of Justice and Another 1969 (3) SA 365 (A) at 369.

In a case such as the present, where there has been a flagrant breach of the Rules of this Court in more than one respect, and where in addition there is no acceptable explanation for some periods of delay and, indeed, in respect of other periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects of success may be.”

In MBUTUMA v XHOSA DEVELOPMENT CORPORATION LTD²⁴ TRENGROVE AJA held that:

“Then there is the question of the applicant’s prospects of success on appeal. As to the merits of the appeal, I do not consider it necessary to examine them in this instance, for, even if I were to come to the conclusion that the appellant’s prospects of success were good, I would nevertheless refuse the indulgence on account of the cumulative effect of the other factors to which I have already referred.

I have, in the result, come to the conclusion that the petition should be dismissed by reason of the grossly inordinate and inexcusable delay for which the applicant and his attorney have been responsible.”

In considering the prospects of success it appears that the applicant has a bona fide defence which prima facie carries some prospects of success on the quantum. The first respondent did not disclose his earnings with Bushbucks in his particulars of claim which may be relevant when the damages due to him are calculated. However, whilst reasonable prospects of success are an important consideration it must be weighed against the other factors which this Court must take into account and is not the overriding consideration. In casu there is no acceptable explanation for the delay in instituting the application for rescission or for the reason for the default. The fact that the applicant has some prospects of success on the quantum does not outweigh the flagrant disregard of the time period within which the application for condonation should have been instituted.

The application for condonation is refused and the application is dismissed with costs.

COUNSEL FOR THE APPLICANT : MR RAMDHANI

COUNSEL FOR THE FIRST RESPONDENT : MS NEL

DATE OF HEARING : 18 AUGUST 2005

JUDGMENT HANDED DOWN ON : 8 DECEMBER 2005

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