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

Case no. 3627/13
Date heard: 12/3/15
Date delivered: 13/3/15
Not reportable

In the matter between:

DEON STEYN VAN EEDEN N.O. 					Applicant

and

JACOBUS JOHANNES MOOLMAN N.O. 		        First Respondent

THE SHERIFF OF THE HIGH COURT, CRADOCK 	   Second Respondent

JUDGMENT

PLASKET, J:

[1]	On 5 December 2013, Roberson J granted a default judgment for the payment of R1 453 733. 67, interest and costs in favour of Mr JJ Moolman (Moolman), in his capacity as the executor of the deceased estate of Mrs MH Coetzer, and against Mr DS Van Eeden (Van Eeden), in his capacity as the sole trustee of the MEP Trust. Van Eeden has applied for the rescission of that default judgment.

[2]	Rule 31(2) of the uniform rules is applicable to this case. It states:
‘(a) Whenever in an action the claim or, if there is more than one claim, any of the claims is not for a debt or 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 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.’

[3]	The elements that an applicant for rescission of a judgment must establish have been set out as follows by Brink J in Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O) at 476-477:
‘(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.’

[4]	As stated, the default judgment was granted on 5 December 2013. The application to rescind it was launched on 20 November 2014. In addition to satisfying the requirements set out in Grant, Van Eeden also has to show that the application was instituted within 20 days of him acquiring knowledge of the default judgment. In the circumstances of this case, this is bound up with the enquiry into the reasonableness of Van Eeden’s explanation of his default.

[5]	This being an application, the facts upon which I must decide whether Van Eeden is entitled to the relief he claims must be determined on those factual allegations made by him that have been admitted by Moolman or have not been denied plus the facts alleged by Moolman. See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H-I.

[6]	In his founding affidavit, Van Eeden stated that he only became aware of the default judgment on 23 October 2014 when a writ of execution against immovable property was given to him by Mr LC Coetzer, it having been served on Coetzer by the Sheriff with a request that he hand it on to Van Eeden. He claimed to have had no knowledge of having been sued by Moolman and consequently no knowledge of the default judgment prior to 23 October 2014.

[7]	His evidence to this effect is denied by Moolman. He stated, and this is confirmed by the Sheriff, the second respondent, that the summons was served on Van Eeden personally. The return of service bears him out. It states that the summons was served on Van Eeden personally at 11h00 on 5 November 2013 at ‘SAPS, Cradock’, Van Eeden’s place of employment.

[8]	Moolman also alleges that after the default judgment had been granted, a writ of execution against movables was issued and served on Van Eeden personally by the Sheriff on 21 February 2014 at 15h26, again at SAPS, Cradock. Van Eeden admitted this in his replying affidavit. He stated, however, that the writ did not refer to him in his capacity as a trustee.

[9]	He then said that he was at a loss ‘as to why the warrant of execution did not come to my attention’ and that the only explanation he could think of was that when he is busy, he accepts service of documents without reading them or paying attention to their contents. He conceded that he had been negligent in this regard but stated that his conduct had not been wilful.

[10]	From the exposition of the facts, it is clear that Van Eeden knew of the proceedings against him on 5 November 2013. He cannot get away from the return of service. He must have realised that judgment had been taken against him when a writ of execution against movables was served on him in respect of the same case a mere three and a half months later.

[11]	Once it is accepted, as it must be, that he knew of the proceedings against him because the summons was served on him personally, then his explanation that he negligently but not wilfully failed to read the writ is so implausible that it only has to be stated to be rejected.

[12]	The only reasonable inference to draw from the facts that he knew of the proceedings and that the writ in the same matter was served on him personally is that he was in wilful default. This also means that he had knowledge of the default judgment – or at least must be taken to have had knowledge of it – by 21 February 2014, and so instituted this application well in excess of 20 days after acquiring that knowledge. Thirdly, in the circumstances I have outlined, it cannot be said that the application was a bona fide one. Instead, it was brought with the intention of delaying Moolman’s claim.

[13]	As I have found that the application was brought out of time (and no application for condonation has been brought), that no reasonable explanation for the default has been tendered and that the application was not bona fide, the application cannot succeed and there is no need to consider whether Van Eeden has a bona fide defence to Moolman’s claim. I have also considered whether this is an exceptional case in which a good reason otherwise exists to rescind the default judgment, even in the absence of a reasonable explanation. I conclude that no such grounds exist. See Minister of Safety and Security v George (CA 305/12)[2013] ZAECGHC 41 (1 March 2013) para 56.

[14]	The application is dismissed with costs.

_____________________
C Plasket
Judge of the High Court

APPEARANCES
Applicant: S Cole instructed by Whitesides.
First Respondent: B Boswell instructed by Netteltons
Second Respondent: No appearance