FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ: 166

PARTIES: LOUIS SLABBERT

AND

ALEC BRETT

• Registrar: 1133/06

• Magistrate:

• High Court: EASTERN CAPE DIVISION

DATE HEARD: 25/05/07

DATE DELIVERED: 20/06/07

JUDGE(S): Jones J.

LEGAL REPRESENTATIVES –

Appearances:

• for the Applicant(s): ADV: Paterson

• for the Respondent(s): ADV: Brooks

Instructing attorneys:

• Appellant (s): NETTELTONS

• Respondent(s): WHEELDON RUSHMERE & COLE

CASE INFORMATION -

• Nature of proceedings : APPLICATION FOR RESCISSION

Reportable

In the High Court of South Africa

(Eastern Cape Division)

(Grahamstown High Court) Case No 1133/2006

Delivered:

In the matter between

LOUIS SLABBERT Applicant (Defendant)

and

ALEC BRETT Respondent (Plaintiff)

SUMMARY: Rescission of an order striking out a defence and a judgment by default – good cause – applicant failing to show good cause.

JUDGMENT

JONES J:

[1] This is an application by the defendant for the rescission of a default judgment against him, and ancillary relief.

[2] The plaintiff claimed payment of R261, 896-57 from the defendant, being the balance of an amount allegedly due and payable in terms of a contract. The matter was set down for trial on 24 October 2006, but the trial was re-arranged during early October 2006 for 22 November 2006. On 18 August 2006 the plaintiff filed a request for particulars for trial in terms of rule 21. The defendant did not furnish them within the time laid down. On 24 September 2006, after notice to the defendant’s attorneys of record, the plaintiff applied to court in terms of rule 21(3) for an order compelling the defendant to furnish the particulars by a particular date, failing which the plaintiff was given leave to apply on the same papers for an order striking out the defendant’s defence. The order was granted. The defendant did not comply. On 24 October 2006 the plaintiff filed an application to strike out the defendant’s defence, once again after prior notice to the defendant’s attorney of record. The application was made on 26 October 2006. On that date the defendant had still not furnished the trial particulars. But his attorney appeared on his behalf to oppose the relief. The court however granted an order striking out his defence. On 31 October 2006 the matter was set down for judgment. 0n 6 November 2006 judgment by default in terms of rule 31(5)(a) was ordered against the defendant in the sum of R261, 896-57, with interest and costs. The plaintiff then proceeded to execution.

[3] On 14 February 2007 the defendant brought an application as a matter of urgency for an order staying the sale of certain of his movable property which had been attached in execution of the plaintiff’s judgment. The notice of motion also claimed rescission of the judgment by default ordered on 6 November 2006, and rescission of the order of 26 October 2006 striking out the defendant’s defence. The issue of the sale in execution has fallen away. But the plaintiff has opposed the applications for rescission. For convenience I shall continue to call the applicant in the rescission application the defendant, and the respondent the plaintiff.

[4] The defendant based both of his applications for rescission squarely on the provisions of rule 31(2)(b) of the uniform rules of court which provides that a defendant may within 20 days after he has knowledge of a judgment against him by default 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. This was the appropriate procedure for the application in respect of the money judgment, being the route specially designed by the rules of court in the case of a judgment granted against a defendant when he is in default of appearance. It is not, however, the appropriate procedure for rescission of the order striking out the defence because that order was not a judgment by default in terms of rule 31. Furthermore, the defendant cannot rely on the provisions of rule 42(1)(a), which empowers a court to set aside a judgment erroneously sought or erroneously granted in the absence of a party. The order striking out the defence was not granted in the absence of the defendant: his attorney represented him in that application.¹ Also, rescission was neither erroneously sought nor erroneously granted. The only possible basis for rescission is an application at common law. Although the defendant does not purport to rely on the common law, there is, in general terms, common ground between applications for rescission under rule 31(2)(b) and at common law which enables me to consider whether or not the papers make out a case of rescission of the striking out order at common law. I shall proceed with the application on that basis.

[5] An applicant for rescission of a judgment must show good cause, both at common law² and in terms of rule 31(2)(b). The courts have not given a precise meaning to the term ‘good cause’³, for fear of circumscribing unduly a wide discretion to order rescission, based on considerations of fairness to both parties. As a rule, the courts consider that there is good and sufficient cause if an applicant for rescission is able to give a reasonable explanation for this default, if he is able to show that his application is bona fide, and if he is able to show that he has a bona fide defence to the plaintiff’s claim which prima facie has some prospect of success.⁴

[6] I have referred to the wide discretion of the courts to achieve fairness. It must not be forgotten that this means fairness to the plaintiff as well as the defendant. The plaintiff’s cause of action arose from an agreement entered into between the parties as long ago as January 2005. Since then the plaintiff has followed all the proper procedures laid down in the rules of court for proceeding to judgment in his favour. In the absence of good grounds of appeal, he is entitled to proceed to execution. If fairness is the criterion, his interests must be balanced against those of the defendant. In this case there are no good grounds of appeal, and, the policy of the law being to promote certainty and finality of judgment, the plaintiff should not lightly be denied the right to execute on his judgment. If I am to afford the defendant the indulgence of rescission of a judgment which cannot be impugned on appeal, I must do so on facts which are clearly established. When I examine the allegations in the defendant’s application I have no alternative but to conclude that he has not made out a proper case. He has not given a sufficient explanation to show that his conduct of the litigation was indeed reasonable or satisfactory or that it was bona fide throughout. I also cannot be satisfied that the defendant has shown that he has a defence which can be supported with evidence and which has sufficient merit to persuade me that he should not be denied the opportunity of presenting it. In coming to this conclusion I have not forgotten to consider all the evidence as a whole, and to bear in mind that a weak explanation may sometimes be outweighed by a bona fide defence which has not merely some prospect, but a good prospect, of success.⁵ I must also bear in mind that the approach is not to penalize the defendant for his procedural ineptitude. It is to do justice between the parties.

[7] I accept that the defendant has all along intended to oppose the relief sought by the plaintiff in the main action. To that end he appointed an attorney, one Weiderman of Aberdeen, to represent him, and also an attorney of record at the seat of the court, one Nettelton of Grahamstown. These attorneys remained the defendant’s representatives throughout. The defendant’s explanation for not opposing the striking out order and the judgment was that throughout the process of the further particulars application and the application for judgment he was not consulted at all by his attorneys. Indeed, his standpoint is that he has had no contact with them since October 2005. His affidavit explained that the summons was served on him on 11 August 2005. He instructed Weiderman to defend the claim. Weideman appointed Nettelton as the attorney of record. Nettelton filed a notice of intention to defend on 9 September 2005. Thereafter the plaintiff brought an application for summary judgment. The defendant consulted, and on 4 October 2005 he attested to an affidavit in opposition to the summary judgment application. That, he said, was the last contact that he had with Weiderman. He maintained that he was quite unaware of the application for trial particulars, and the events which ultimately led to the judgment being taken against him. He averred that he was not, therefore, in wilful default. In support of his explanation he filed an affidavit by Nettelton. There is no affidavit from Weiderman.

[8] The defendant relies, then, on the failure of his attorneys to advise him of the need to reply to the request for particulars and to take the procedural steps which were necessary thereafter. The failure of an attorney to inform his client of procedural developments and his failure to take proper steps to safeguard his client’s interests does not necessarily justify rescission. This is clearly illustrated by the facts of De Wet and others v Western Bank Ltd⁶ and Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape.⁷ It is not a reasonable explanation simply to say that ‘my attorney did not get in touch with me’, or that ‘he failed to take the procedural steps necessary for the protection of my interests’, without explaining why. There is no explanation why from the applicant or from Weiderman, who was responsible for taking instructions, and hence there is no way of measuring the reasonableness or otherwise of the attorney’s neglect in the circumstances. According to Nettelton’s affidavit ‘it was extremely difficult (and at times virtually impossible) to get instructions from Mr Weideman’. Nettelton had no direct dealings with the defendant. His affidavit gave a full account of his correspondence with Weideman in September 2006 when the trial date (24 October 2006) was fast approaching, referring to letters or telefaxes dated 7 September 2006, 8 September 2006, 12 September 2006 and 18 September 2006. These dealt with the imminence of the trial date, the need to address the request for trial particulars, the need to instruct counsel on trial, and the urgent need for proper instructions. Weideman replied on 24 September 2006 requesting a date for a consultation and stating that the request for trial particulars had been forwarded to the defendant. On 26 September 2006 Nettelton sent a copy of the application to compel the trial particulars to Weideman, and he sent Weideman a copy of the order granting the application on 2 October 2006. On 4 October 2006 he advised Weideman telephonically that the need to prepare properly for trial had become critical, that it was not possible to see counsel at such short notice, and that the only option was for him to arrange a postponement at the defendant’s cost. Nettelton stated that otherwise he would have to withdraw. In a telephone call from Weideman later that day, Nettelton was told that Weideman had spoken to the defendant who would be grateful if the matter could be put on hold because of a crisis on the farm, and he asked Nettelton to proceed as earlier discussed (i.e. to get a postponement).

[9] At this point all was not yet lost. There was still a month to go before the plaintiff would take judgment by default. On 5 October 2006 Nettelton commenced negotiations with the plaintiff’s attorneys with a view to a postponement. He made a frank disclosure to the plaintiff’s attorneys of his difficulties in getting instructions thus far. He had not yet received financial cover or proper instructions to prepare for trial and brief counsel. He nevertheless attempted to save the day by seeking the registrar’s co-operation to juggle trial dates so that the trial would commence on 22 or 27 November 2006 and not 24 October 2006. An unfortunate misunderstanding arose thereafter. On 9 October 2006 the plaintiff’s attorneys sent a letter to Nettleton agreeing to remove the matter from the roll of 24 October 2006 on the express understanding that the matter was to be heard instead on 22 November 2006. There was a further agreement that the defendant was given two weeks to place his house in order, inter alia by furnishing the trial particulars. It is not disputed that there was an error on Nettelton’s part about the two week period. The agreement was that the two weeks commenced on 9 October 2006, being the date of the agreement between the attorneys. Nettelton thought that he had two weeks from the date of the registrar’s confirmation of the new trial date. On 10 October 2006 Nettelton advised Weideman of the proposed new trial date – 22 November 2006 – and called for a preliminary deposit of R50 000-00 to enable him to brief counsel, arrange consultations and prepare for trial. He sent a reminder on 12 October 2006, and, on 20 October 2006, he advised Weideman that if appropriate financial arrangements were not made by 23 October 2006, he would be obliged to withdraw. The only response was recorded in a note in Nettelton’s file – presumably following a telephone call – that the defendant would be able to consult with counsel on 19 November 2006⁸, and, apparently, that he would discuss the issue of financial arrangements. By that time there was, in Nettelton’s eyes, nothing to discuss. He needed the deposit immediately.

[10] On 23 October 2006 Nettelton became aware of the misunderstanding about the 2 week period of grace. He had thought that it had not yet, or had only just, commenced to run, but by then it had expired. The plaintiff’s attorneys set down the application for striking out the defence, and, in a last ditch stand to assist the defendant, Nettleton gave notice of intention to oppose, prepared an opposing affidavit, and appeared personally to oppose the application on behalf of the defendant. He was in a position to place before the court all the facts at his disposal, including his own misunderstanding about the two week period. But his opposition was not successful. He reported accordingly to Weideman.

[11] Nettelton’s misunderstanding about the two week period of grace was central to Mr Paterson’s argument of the reasonableness of the defendant’s explanation for his default. He submitted that it properly and sufficiently explained the defendant’s non-compliance with the order to compel particulars, and for what happened afterwards. I accept the submission that Nettelton’s affidavit sets out comprehensively the details about how the misunderstanding came to be made, and that his explanation is a full explanation for that part of the story. But it cannot and does not provide a proper explanation for the rest of the story. It is not as if the defendant and Weideman were lulled into a false sense of security as a result of Nettelton thinking that they had more time in which to furnish the trial particulars. They did nothing at all during this crucial period other than to confirm a date for pre-trial consultations and to note that financial arrangements would be discussed. Nettelton’s misunderstanding occurred during the time when the particulars were to be furnished and the striking out order was made. But it does not seem to me to have materially affected the matter one way or the other. If the defendant was not misled by it (his case is that he knew nothing about it), I have difficulty in seeing how it can improve the sufficiency of an otherwise inadequate explanation. In my view, the trial particulars would not have been furnished and the plaintiff would have gone on to judgment regardless of the misunderstanding and in spite of the fact that Nettelton had taken it upon himself to do everything that was required of him as attorney of record, and more, in order to place his client’s case properly before the court.

[12] I also have difficulty with the defendant’s version that he had no contact whatever with Weideman since October 2005. If he intended to present a bona fide defence to the claim against him it is probable that he would have started to make financial arrangements for the trial during that period and that he would have called for progress reports from time to time. That he did not do so was a culpable neglect of his own affairs. It tells against the adequacy and the bona fides of his explanation. There is yet another difficulty in this regard. His statement that he had no contact with his legal team during the period of the process leading to judgment being taken against him is inconsistent with the facts deposed to in Nettelton’s affidavit. That affidavit disclosed communications between the defendant’s own agents which state that the defendant indeed had contact with Weideman during this crucial period. Thus:

• Weideman sent the defendant the request for particulars for trial;

• Weideman contacted the defendant thereafter and the defendant asked for the matter to be put on hold because of a crisis on the farm;

• the defendant’s availability for pre-trial consultations was confirmed; and

• when asked for a deposit for fees, the defendant said that he wanted to discuss the issue.

These inconsistencies between his affidavit and what his own attorneys recorded at the time were not addressed or explained in the defendant’s affidavit. They detract from the bona fides of his explanation by watering down his case that he was kept completely in the dark. It is, furthermore, highly improbable that the financial side of the litigation was not pertinently raised with him at a time when the trial date was less than a month away. In addition, while there may be understandable reasons for not submitting an affidavit from Weideman, the absence of an affidavit from him counts against the adequacy of his client’s explanation. Much is left unexplained. Another feature which tells against the defendant’s case is the delay in bringing the application for rescission. The chief reason given for this was difficulty until February 2007 in raising funds to bring the application. This raises doubts about the bona fides of the defendant’s ability to defend the action in October and November 2006. Further, it is, in itself and without more detailed elaboration, not an entirely satisfactory or sufficient excuse for not speedily seeking redress against the extreme prejudice of a judgment improperly taken. The delay was considerable, far in excess of the 20 days laid down by rule 31(2).

[13] In the result, the information placed before me about the conduct of the defendant’s litigation does not measure up as a reasonable and bona fide explanation for the defendant’s default. Much of the blame is, according to the papers, attributable to the ineptitude of Weideman (the results of which could not be put right despite Nettelton’s best efforts). While the courts are sometimes reluctant to allow a litigant to suffer the consequences of his attorney’s neglect, this does not exonerate an applicant for rescission from the obligation of giving a proper explanation for the default. As the highest court in the land put it:

‘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’.⁹

The attorney’s inefficiency was not in the final result regarded as a sufficient explanation in Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape supra¹⁰:

‘I have reservations about accepting that the defendant's explanation of the default is satisfactory. I have no doubt that he wanted to defend the action throughout and that it was not his fault that the summary judgment application was not brought to his attention. But the reason why it was not brought to his attention is not explained at all. The documents were swallowed up somehow in the offices of his attorneys as a result of what appears to be inexcusable inefficiency on their part. It is difficult to regard this as a reasonable explanation. While the Courts are slow to penalise a litigant for his attorney's inept conduct of litigation, there comes a point where there is no alternative but to make the client bear the consequences of the negligence of his attorneys (Saloojee and Another NNO v Minister of Community Development). Even if one takes a benign view, the inadequacy of this explanation may well justify a refusal of rescission on that account unless, perhaps, the weak explanation is cancelled out by the defendant being able to put up a bona fide defence which has not merely some prospect, but a good prospect of success (Melane v Santam Insurance Co Ltd)’.

[14] This is not a case where the inadequacies of the explanation can be offset by the strength of the defence on the merits. On this leg of the case the defendant does no more than incorporate by reference the affidavit he made in the application for summary judgment. He gives no elaboration at all, and no detail of the evidence at his disposal to prove his defence. He gives no background facts to indicate inherent probabilities which favour his version over that of the plaintiff. There is nothing on record to show that this is a case of not merely of a prima facie defence, but a defence with a real prospect of success, and that, for that special reason, it would be proper to overlook the weak explanation for the default.

[15] In the result the application for rescission must fail. The application is dismissed with costs which shall include the costs of the postponement of 15 February 2007.

RJW JONES

Judge of the High Court

27 May 2007