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Dabane v Fanti (408/94) [1996] ZAECHC 1 (14 November 1996)

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IN THE SUPREME COURT OF SOUTH AFRICA

(CISKEI PROVINCIAL DIVISION)




CASE NO. 408/94


CECIL DABANE First Applicant


VUYANl FANTI Second Applicant


and

FIKISWA NGQASE Respondent


J UDG ME NT



EBRAHIM AJ: In this matter there are presently two applications before the Court. The first seeks an order extending the time limit prescribed in Rule 31 (2)(b) of the Supreme Court Rules and an order condoning the late filing of the second application, which is an Application for the Rescission of the Default Judgment granted against the First Applicant on 18 May 1996. These applications are being opposed by the Respondent.



The headings of both applications reflect that there is a First and Second Applicant but it is clear from all the documentation that the applications are being brought only on behalf of the First Applicant, CECIL DABANE. The default judgment granted against VUYANl FANTI, who is cited as the Second Applicant and is the

Second Defendant in the main action, remains unaffected, therefore, by these applications. For the sake of convenience, however, I refer to the parties as cited in the headings of both Applications.



RE: THE APPLICATION FOR CONDONATION OF THE LATE FILING OF THE APPLICATION FOR RESCISSION OF JUDGMENT


The facts upon which the First Applicant relies in support of this application are set out in an affidavit attested to by First Applicant on 16 July 1996. I do not propose to detail all the averments in the affidavit but suffice to say that they are scanty and vague. However, in his replying affidavit First Applicant has taken the liberty of supplementing these extensively.



What emerges from these affidavits is that First Applicant admits that sometime during August 1995 he became aware of the default judgment which had been granted against him on 18 May 1995. Default judgment was granted against both First and Second Applicants after they had been barred from filing their Pleas. Thereafter, but still during August 1995, First Applicant instructed his present attorneys of record to apply for the rescission of the default judgment which had been granted against him. Both the instant applications, dated 16 July 1996 are as a result of the instructions given by First Applicant to his attorneys during August 1995.



What is glaringly apparent from both affidavits is the silence of First Applicant concerning the reasons for the delay in bringing these applications immediately after he had instructed his attorneys in August 1995 to do so. The only reference, and then merely obliquely, to a reason for the delay is an averment by the First Applicant, who is a taxi owner, that he had no source of income. He says that this was due to all his taxis being damaged and some being repossessed by the banks. Nevertheless, he was able to raise the sum of R2 000,00 which was portion of the amount of R4 000,00 requested by his attorneys in order to bring these applications. Apart from this, the inordinate delay is left entirely unexplained.



Mr Taljaard, who appears for the Respondent, stated in his Heads of Argument that the First Applicant had failed to furnish an acceptable explanation for his default. Further, that the application was not bona fide and was being made with the intention of delaying execution of the judgment granted against First Applicant. I find myself in full agreement with these submissions.



The failure of the First Applicant to furnish an explanation, let alone a reasonable one, for the delay of almost a year in bringing the application for condonation of the late Application for Rescission of Judgment is, in my view, fatal. See Building Improvements Finance Co (Pty) Ltd v Additional Magistrate, Johannesburg, and Another 1978 (4) SA 790 at 791H andVan Aswegen v Kruger 1974 (3) SA 204 at 205C. The First Applicant has failed to show good cause why an order extending the time limit prescribed in Rule 31(2)(b) should be made. See Dalhouzie v Bruwer (4) SA 566 (C) at 572D.



There is, therefore, no basis for granting the relief sought by First Applicant and it follows that this application must fail.

This in itself would be sufficient to dispose of the Application for Rescission of Judgment as well. But, I nevertheless deem it necessary to comment, albeit briefly, on that application too. It seems appropriate to me that I do so in order to dispel any misapprehension that First Applicant may still have hereafter that the default judgment would have been rescinded had an application for its rescission been brought timeously.




RE: THE APPLICATION FOR RESCISSION OF THE DEFAULT JUDGMENT



Ms Mnonopi, who appears for the First Applicant, argued this matter before me on the basis of Heads of Argument which had been prepared by Counsel who previously represented the First Applicant. She submitted that the First Applicant had shown in his affidavits that he had a bona fide defence to Respondent's claim. This submission was based largely on the observations contained in the supporting affidavits of two of the scholars who were being transported in the taxi, namely, Fanelwa Dokolwana and Nomonde Priscilla Fuma. The relevant paragraphs from the affidavit of Fanelwa Dokolwana read as follows:

'9. I was seated in the front seat next to the driver.

10. Music was played very loudly and scholars at the back seats were dancing. They were standing on their feet and danced from side to side doing bus jive.

11. The driver asked the scholars to sit down as their dancing was causing an imbalance in the kombi, as they were swerving from side to side.

  1. The weather on that evening was overcast. It was also drizzling along the coast.

  2. As we so travelling (sic) along the road the kombi fell on its side on the tarred portion of the road. It then skidded for a short distance. It stopped on the other side of oncoming motor vehicles.'



Miss Mnonopi submitted further that the First Applicant's defence would, at the trial, be supported by expert evidence in respect of the police plan. When asked to expand on this submission she was unable to do so and conveyed that the relevance of the evidence of the expert would become apparent at the trial.



I find these submissions surprising, to say the least, and untenable. While the First Applicant is not called upon at this stage to set out his defence with great detail, he is obliged to set up a prima facie defence. He, therefore, has to set out with sufficient detail the facts that he alleges substantiate his defence, to enable the Court to determine that he has a bona fide defence and that the application is not being brought simply in order to harass the Respondent.



The First Applicant has set out the merits of the matter in the affidavits. I have taken cognisance of these and, in my view, on the basis thereof the probabilities in this matter are manifestly in favour of the Respondent.



The versions given by Fanelwa Dokolwana and Nomonde Priscilla Fuma, two of the witnesses upon whom the First Applicant relies to show that he has a bona fide defence, do not assist him at all. On the contrary, their versions undermine completely any possible defence that the First Applicant might be able to raise. It is clear from what they state in their affidavits that the actions of the Second Applicant at the time of the accident display almost a reckless disregard for the safety of the passengers in the kombi.



I cannot see on what basis it can be said that the conduct of the Second Applicant meets the test of what a reasonable driver would have done under the circumstances. When asked about this Ms Mnonopi had to concede that the actions of Second Applicant failed this test. She admitted that the conduct of some of the passengers posed a clear danger to the Second Applicant's ability to retain control over the vehicle.



There can be no doubt that it was dangerous for the Second Applicant to continue driving under the prevailing circumstances. He should have stopped the vehicle immediately he was aware that the conduct of some of the passengers made it dangerous for him to continue driving. In failing to do so he is clearly negligent, if not reckless.



Moreover, the First Applicant has admitted that the Second Applicant was in his employ and has not denied that the Second Applicant was driving during the course and scope of his employment. The First Applicant is thus vicariously liable for the consequences that flow from the actions of Second Applicant and, accordingly, for the damages suffered by the Respondent.

In my view, the First Applicant is clutching at straws in seeking to rely on the evidence of these witnesses. He has failed to show that he has a bona fide defence or that there is any probability of his being able to prove any contributory negligence on the part of the Respondent. He has also failed to show that the defence presented by him is not merely for the purpose delaying satisfaction of the Respondent's claim. See Dulhouzie v Bruwer (supra) at 572C-D and 574H - 575A.



It follows that there is no basis for an order for the rescission of the default judgment granted on 18 May 1995. In the circumstances, l make the following order:



1. The Application for an Order extending the time limit prescribed in Rule 31 (2)(b) of the Supreme Court Rules and an Order condoning the late filing of the Application for Rescission of Judgment is dismissed with costs;


and

2. The Application for Rescission of the Default Judgment granted against First Applicant on 18 May 1994 is dismissed with costs.


Y EBRAHIM

ACTING JUDGE OF THE SUPREME COURT OF SOUTH AFRICA

(CISKEI PROVINCIAL DIVISION)

Heard on the 31 October 1996

Judgment delivered on the 14 November 1996

Counsel for the First Applicant Ms Mnonopi

Counsel for the Respondent Mr D J Taljaard