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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 2281/2012

DATE HEARD: 06/11/2014

DATE DELIVERED: 27/11/2014

In the matter between

PONKO KA MASIBA.................................................................................................1^ST APPLICANT

PMLIVE MEDIA........................................................................................................2^ND APPLICANT

and

BISHOP NONKULWANA ELIJAH SHWENI............................................................RESPONDENT

JUDGMENT

ROBERSON J:-

[1] This is an application for condonation for the late bringing of an application for rescission of judgment, and for rescission of a judgment granted against the applicant following the failure to deliver a plea.

[2] The respondent instituted an action against the applicants for the payment of damages for defamation.  This followed articles written by the first applicant which were published by the second applicant in a magazine known as Let’s Praise.  The applicants entered an appearance to defend the action on 2 November 2012.  A notice of bar was served on 31 January 2013.  The application for default judgment was heard by Mey AJ on 7 March 2013.  After hearing the evidence of the respondent, on 28 March 2013 she granted judgment against the applicants in the sum of R150 000.00.

[3] According to his evidence, the respondent is a bishop in the Church of God and Saints of Christ.  In the articles the first applicant referred to the respondent as a charlatan, a demagogue, and a moron. He compared him to a tyrant and stated that he had abused the authority given to him by the church and betrayed people’s trust.

[4] In his founding affidavit, the first applicant stated that the plea was not filed owing to an oversight on the part of the applicants’ attorney.  The matter had been diarised but was overlooked.  He averred that the alleged defamatory matter was fair comment, that the respondent was guilty of the “infractions and misconduct ascribed to him” in the article, that the language used by him, although “strident”, was justified, and that it was in the public interest that that an open letter was written to the respondent.  The first applicant further averred that the amount awarded was excessive.

[5] In his answering affidavit, the respondent stated that a warrant of execution had been served on the first applicant on 2 July 2013.  He referred to a letter dated 8 August 2013 addressed to his attorney by the applicants’ attorney, in which it was stated that the judgment had been granted by default and had occurred as a result of an oversight in the applicants’ attorney’s office.  The respondent also stated that an application in terms of s 66 of the Magistrate’s Courts Act to declare the first applicant’s immovable property executable was served personally on the first applicant on 13 June 2014.

[6] The applicants’ attorney deposed to an affidavit in reply to the answering affidavit.  Under the heading “Ad the application for condonation” he stated that pressure of work in his practice resulted in the delay in launching the application for rescission.   The first applicant had always made it clear to him that the claim should be defended and details of the plea had from the start been furnished to him.  The applicants had at all times entrusted him with the proper conduct of the matter.  He acknowledged that this was an unacceptable standard of practice but the pressure of work in a single practitioner practice inundated his schedule, resulting in the neglect of this matter.

[7] The applicants learned of the judgment at the latest on 8 August 2013.  This application was launched on 2 July 2014, eleven months later.  The first applicant did not deal in the founding affidavit with the delay in launching the application for rescission.  In fact the notice of motion originally did not include a prayer for condonation and was later amended to include such a prayer.  Even though the circumstances for the delay were only dealt with in reply, I am prepared to consider the attorney’s affidavit.

[8] In Van Wyk v Unitas Hospital [2007] ZACC 24; 2008 (2) SA 472 (CC) at para [20] the following was said by the Court (footnotes omitted):

“This court has held that the standard for considering an application for condonation is the interests of justice.  Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case.  Factors that are relevant to this enquiry include but are not limited to the nature of the relief sought, the extent and cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation for the delay, the importance of the issue to be raised in the intended appeal and the prospects of success.”

Further at para [22] the Court said:

“An applicant for condonation must give a full explanation for the delay.  In addition, the explanation must cover the entire period of delay.  And, what is more, the explanation given must be reasonable.”

[9] In Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) at para [6] Heher JA said:

“One would have hoped that the many admonitions concerning what is required of an applicant in a condonation application would be trite knowledge among practitioners who are entrusted with the preparation of appeals to this Court: condonation is not to be had merely for the asking; a full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility. It must be obvious that, if the non-compliance is time-related then the date, duration and extent of any obstacle on which reliance is placed must be spelled out.”

[10] Bearing in mind the above dicta, in my view the attorney’s explanation for the delay is neither reasonable nor sufficient, especially when one considers the lapse of time involved.  It amounts to a bald statement that for eleven months he was too busy to give attention to this matter.  He should have given details of what other matters he had to attend to, why they received preference over this one and why this one was neglected.  The effect of the explanation is that other matters consistently took preference and that there was little hope of ever getting to this matter.  The explanation is so vague and generalised that one cannot understand why this matter was not attended to.  In my view this is a matter where the following remarks in Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141C-E are entirely apposite:

“There is a limit beyond which a litigant cannot escape the results 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.”

[11] The applicants are not blameless with regard to the delay.  The first applicant makes no mention whatsoever of an enquiry to his attorney with regard to progress in the matter.  He appears to have been content to leave the matter in the hands of the attorney and to have taken no interest in the progress of the matter.  This is not good enough.

[12] The following passage in De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (A) at 1044C-D is equally apposite:

“In this regard I fully agree with MELAMET J’s observation at 780E of the Full Court judgment, that the appellants

“cannot divest themselves of their responsibilities in relation to the action and then complain vis-à-vis the other party to the action that their agents, in whom they have apparently vested sole responsibility, have failed them.” ”

[13] With regard to the application for rescission, the same criticism applies to the explanation for the failure to deliver a plea.  In fact, there is no specific explanation from the attorney in this regard.  He does not mention receipt of the notice of bar and why it was not acted upon. 

[14] This brings me to the notice of set down of the application for default judgment.  After I reserved judgment in this application, I noticed that proof of service of the notice of set down of the application for default judgment was not in the court file.  Mey AJ had mentioned in her judgment that the application had been set down on notice.  I requested this proof from the parties’ attorneys, thinking that it had inadvertently been omitted from the papers.  It transpires that the notice of set down of the application for default judgment was probably not served on the applicants’ attorneys of record.  Neither attorney is able to furnish proof that it was served.  The notice of set down in the court file is addressed only to the Registrar (I thought there might be a second page showing that it was also addressed to the applicants’ attorneys), and according to the applicants’ local attorney that is all he has.  The respondent’s local attorney does not have a copy of the notice of set down in his file.  The applicants’ local attorney furnished the Registrar (copied to the respondent’s attorney) with a copy of an e-mail sent to his instructing attorney in Port Elizabeth on 7 March 2013 in which he advised him that “without notice (as far as I can gather) this matter was set down in Motion Court today.  I shall find out what happened.  There would have been oral evidence.”  Despite their attorney having been advised that the matter was on the roll on 7 March 2013, probably without notice, the applicants have apparently chosen not to rely on this procedural irregularity in this application. 

[15] The defence of fair comment is also in my view insufficiently dealt with in the first applicant’s affidavit.  In Grant v Plumbers 1949 (2) SA 470 (O) at 476-477 Brink J said the following concerning the requirement of a bona fide defence in an application for rescission of judgment:

“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. (Brown v Chapman (1938 TPD 320 at p. 325).)”

[16] The first applicant did not state what the factual allegations were on which his comments were based, nor did he say that, if there were factual allegations, they were true.  A prima facie defence was therefore not shown.

[17] Lastly, the award of damages was within the discretion of the court.  It was not suggested that the court committed any irregularity or misdirection in assessing the amount to be awarded.  Mey AJ’s judgment reveals no irregularity or misdirection and demonstrated that she was aware of the various factors to be considered in deciding on an appropriate award.

[18] The applicants therefore failed to establish good cause either for condonation or for rescission of the judgment.

[18] The application is dismissed with costs.

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J M ROBERSON

JUDGE OF THE HIGH COURT

Appearances:

For the Applicants: Adv JR Koekemoer, instructed by Netteltons Attorneys, Grahamstown

For the Respondent: Adv K Watt, instructed by Netteltons Attorneys, Grahamstown

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