IN THE SUPREME COURT OF SOUTH AFRICA
(CISKEI PROVINCIAL DIVISION)

CASE NO. 408/94

and

J UDG ME NT

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

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

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.

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to dispel any misapprehension that First Applicant may still have hereafter that the default judgment would have been rescinded had an application for its rescission been brought timeously.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

'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.

12.	The weather on that evening was overcast. It was also drizzling along the coast.
13.	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.

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.

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.

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