IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
			              					  DATE: 18/5/2006
CASE NO: 22828/ 2003
UNREPORTABLE
In the matter between:

BOTHA, THEUNIS LOUIS                                	                  Applicant/Defendant

And 

VAN DEN HEEVER, THEODOR WILHEM, N.O.    		            1ST RESPONDENT 

MOTALA, ENVER MOHAMMED N.O.                   		            2ND ESPONDENT

PEMA, JAYANTA DAJI, N.O.                                       		3RD RESPONDENT

JUDGMENT

MAVUNDLA, J

1.	On the 25 April 2006 I dismissed with cost the application for the			rescission of the judgment that was granted against the Applicant 			on the 16 September 2005. The Application was opposed. I 				indicated that the reasons for the dismissal of the application would			 be made available in due cause. I therefore proceed to set out the 			reasons for the dismissal.

2.	On the 11 August 2003 the Respondents issued summons against the Applicant, who filed an appearance to defend on the 8 September 2003. On the 24 November 2003 Attorneys Boschoff & Associates withdrew as attorneys of record for the Applicant. On the 26 November 2003 Attorneys Etienne Loots then came on record as the Applicant’s attorneys. On the 1 December 2003 an application for summary judgment was brought by the Respondents. However, the Applicant was granted leave to defend the action. The Respondents filed their declaration to which the Applicant pleaded on the 6 May 2003. The pleadings became closed. On the 28 May 2004 the Respondents’ attorneys applied for a trial date. On the 14 October 2004 a notice of set down of the matter for trial on the 16 September 2005 was served upon Attorneys Etienne Loots, Applicant’s attorneys.

3.	     On the 16 March 2005 the Applicant’s aforesaid attorneys filed a 	notice of withdrawal as attorneys of record for the Applicant. 

4.	     On the 16 September 2005 default judgment was granted against 		 the Applicant. A warrant of execution was issued against the			 Applicant and same was served upon the Applicant on the 7`		 February 2005.This resulted in the Applicant bringing an			 application for rescission of the said judgment on the 8 March 		 2005.

5.	      In  explaining his failure to attend court on the date of the granting 	of the default judgment,  the Applicant states that:

(a)	     He was not aware of the application and or the action. 	

(b)		his then attorneys, Attorneys Etienne Loots, failed to inform 	him of the trial date;

      6. 		He further states that he has a bona fide defence.

      7.	There are three dispensations under which an application for rescission can be brought and these are:

   		 7.1 	Rule 31(2) (a). Under this Rule reside those instances where 			there was no appearance to defend or where the defendant				 had filed an appearance to defend but failed to file a plea or 				was barred from so doing. This situation does not attain in 			           casu since the Applicant did file his plea.

  	  	7.2 	Rule 42.1. Within this territory resides those instances where				 the judgment sought to be rescinded:
													
(a)	was erroneously sought or  granted in the absence of		any affected  party;

(b)	or there is a patent error or omission or ambiguity in 				such judgment, but  only to the extent of such error or 				omission or ambiguity;  or

     (c) 	Was granted as the result of a mistake common to the				 parties. This application does not reside in this 				territory as it would become clear herein   below.
  
7.3	Common law. In regard to common Law based application for rescission the position is setout in vide Promedia	 Drukkers & Uitgewers (EDMS) Bpk v  Kaimowitz and Others	 1996 (4) SA 411 at page 417 where Van Reenen J stated that:

       			“In terms of the common law, a court has discretion to 				 grant rescission of judgment where sufficient or good cause	 			 has been shown. But it is clear that in principle and in the 				long standing practice of our Courts, two essential elements 				of ‘sufficient cause’ for rescission of a judgment by default 				are:

               		 (a)	That the party seeking relief must present a 						reasonable and acceptable explanation for his /her 					default;

               		  (b)	That on the merits such party has a bona fide 						defence, which prima facie, carries some prospect of 					success (See Chetty v Law Society of Transvaal 1985 				 (2) SA 756 A at 765B-C; Athmaram v Singh 1989 (3)					 SA 953 (D) at 954E- F).”Vide also De Wet and 					Others v Western Bank Ltd 1979 (2) SA 1031			                     		AD at 1042 H.

8. 	It is trite that the applicant who seeks relief or an indulgence bears 			the onus to establish that there is sufficient cause. For the 				applicant to acquit himself of this onus he must show that both 			these above mentioned elements exist, vide Harris v Absa Bank Ltd 		t/a Volkskas 2002 [3] ALLSA 215 at 217 a full bench Appeal Court 			judgment delivered by Moseneke J, as he then was , now the DCJ, 			where he eloquently states the relevant principles and says inter 			alia that;

‘The test whether sufficient cause has been shown    by the party seeking relief, is dual in nature, it is 	 conjunctive and not disjunctive. An acceptable explanation of default must co-exist with evidence of reasonable prospects of success on the merits. In Chetty v The Law Society (supra) Miller JA explained this rule thus:

“It is not sufficient if only one of these two requirements is met; for obvious reasons a party showing no prospect of success on the merits will fail in an application for rescission of a default judgment against him, no matter  how reasonable and convincing the explanation of his default. And ordered judicial process would be negated if, on the other hand, a party who could offer no explanation of his default other than his disdain for the Rules was nevertheless permitted to have a judgment against him rescinded on the ground that he had reasonable prospects of success on the merits”

   9.	 In the matter of Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 Brink 			J at 476 -477 stated that:

   		  (a)	 He must give a reasonable explanation of his default. If it			          appears that his default was wilfull or that it was due to gross 				negligence, the Court should not come to his defence.

     		 (b)  	His application must be bone fide and not made with the				intention of delaying the Plaintiff’s claim; 				
(c)	He must show that he has a bona fide defence to the 				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.”

10.	 As stated herein above the reason why the applicant was in 				default, he says that he was not informed of the trial date by his 			then attorneys. On examination of the notice of withdrawal as 			attorneys of record by Attorneys E J Loots, dated the 16 March			 2005, it reflects that the notice provided the last known address of			 the Applicant as;

 30 Beethoven Kompleks,
 Beethovenstraat 206,
 Waterkloof Glen. 

There is, however, no indication that this notice of withdrawal was		 sent to the Applicant as well. 

11.	 It is being submitted on behalf of the Applicant by Mr. S.M. Maritz			 that the Respondents’ attorneys should have taken further steps to			 inform the Applicant of the trial date. I do not agree with this				 submission for the very reasons set out in the authority of Bakoven			 Ltd v G.J. Howes (PTY) Ltd 1992 (2) SA 466, which he relies upon 			in support of this submission.

12.	In the matter of Bakoven Ltd v G.J. Howes (PTY) Ltd at 470C 			Erasmus said that:

 “In any event, an applicant seeking rescission of a judgment is not 	entitled to rely on the fact that the notice of withdrawal filed by his 	attorney did not comply with the Rules of Court. De Wet and Others 	v Western Bank Ltd was also a case where the litigants sought to 	set aside in terms of Rule 42 (1) a judgment granted in their 	absence, they too having no knowledge that their case had been 	set down. It was held in the Court of first instance (De Wet and 	Others v Western Bank Ltd 1977 (2) SA 1033 (W) at 1036A-B) 	confirmed on appeal to the Full Bench (1977 (4) SA 770 (T) at 	777H-778B) and on further appeal to the Appellate Devision (De 	Wet and Others v Western Bank Ltd 1979 (2)SA 1031 (A)) , that  	the fact that the notice of withdrawal filed in the matter did not 	comply with the Rules did not assist the applicants (the  applicant in		 the matter). (I refer hereafter to these three reported judgments as		 respectively De Wet (1), (2), and (3).) In delivering the judgment		 the Court, Trengove AJA (as he then was) stated as follows in the		 De Wet (3) (1038D-H)”

 ‘The appellants cannot avail themselves of the fact that their 	attorney had not complied with all the requirements of Rule 16 (4).		 There is no question of any irregularity on the part of the			 respondent. At the stage Lebos withdrew as the appellants’ 	attorney, the case had already been set down for hearing on the 16 	August 1976 in accordance with the Rules of Court, and there was 	no need for the respondent to serve any further notices or 	documents on the appellant in connection with the hearing.  As far 	as the trial Court was concerned the Rules of Court had been dully 	given. When the case was called before Van Reenen J neither the 	appellants nor their legal representative were present in Court, and, 	in the 	circumstances, the respondents’ counsel was  entitled to 	apply for an order of absolution from the instance with costs in 	terms of  Rule 39 (3)  in respect of the appellants’ claims and to 	move for judgment against the appellants, under Rule 39(1) on the 	counterclaim. The fact that the appellants had not been  advised 		 timeously of the withdrawal of their attorney is, of course, a factor 	to be 	taken into account in considering  whether good cause has 	been shown for the rescission of the judgments under the common 	law, but is not a circumstance on which the appellants can 	effectively rely for the purposes of an application under the 	provisions of Rule 42(1)(a).’

13.	The Applicant has not stated why he had not been in contact with			 his attorneys, nor when last he did so. There are various stages 			that the case had progressed, from summary judgment application 			to the filing of the plea. These are indicative that the Applicant has			 been in regular contact with his attorneys. However, from that 			point up to the stage when the warrant of execution was served 			upon him, he is silent as to what steps he took to liaise with his 			attorneys. It must be recalled that the onus rest on him to 				demonstrate that he was not in willful default. A person cannot			 simply take a supine position and make no effort to acquaint 			himself of the progress of his affairs which he entrusted in the 			hands of an attorney, especially when the matter involves huge 			amounts. In casu the amount involved is R600962.00. The failure to 		explain his supine position as I have indicated herein above leaves 			me with no other alternative but to conclude that he has not 				acquitted himself of the onus to demonstrate that he was not in 			willful default. 

In the matter of Mkwanazi and another v Mantsha and another 	2003 (3) ALL SA 222 (T)   at page 231b Van Rooyen AJ  cites 	Jones AJA in Colyn v Tiger Food Industries Ltd t/a a Meadow Feed 	Mills Cape 2003 (2) ALL SA 113 (SCA) as saying that the:

   		 “ inadequacy of his 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 prospects, but a good prospect 		of success.” 

It must further be borne in mind that the Courts are slow in coming 	to the assistance of a party who, with knowledge that there is an 	action which he has entrusted to an attorney fails to direct an 	inquiry to the attorney of the progress of the matter, vide Promedia 	Drukkers & Uitgawers (Edms) Bpk 1996 (4)SA 411 at 420A; 	Neuman (Pvt) Ltd v Marks 1960 (2) SA 173A; Saloojee & 	Another v Minister of Community Development 1965 (2) SA 135 	at 141F-H where Steyn C.J. said that: “If, as here, the stage is 	reached where it must become obvious also to a layman that there 	is a protracted delay, he cannot sit passively by, without so much 	as directing any reminder or enquiry to his attorney (cf Regal v		 African Superslate (Pty.) ., supra at 23 p i.f ) and expect to be 	exonerated of all blame; and if, as here, the explanation offered to 	this Court is patently insufficient, he cannot be heard to claim that 	the insufficiency should be overlooked merely because he has left 	the matter entirely in the hands of his attorney”

14. 	In the light of the above I am not persuaded that there was 				 sufficient cause for the failure on the part of the Applicant to attend 			court, I need now look at whether the Applicant has a bona fide 			defence.

15.	The Applicant states that he has a bona fide defence. He further 			states that on the 1 December 2003 the Respondents brought 			summary judgment application which he opposed. He has been			 advised that the fact that leave to defend was granted is indicative 			that he has a prima facie defence to the action. He has filed his			 plea. His defence appears fully in his opposing affidavit to the 			summary judgment application as well as in his plea. He further 			states that he has enough defenses, which if successful will be			 proved in the hearing of the matter, and which will be the defenses			 against the action of the Respondents. He then attaches as 				annexure “E” and “J” respectively the application for summary 			judgment and his opposing affidavit.

16.	In their declaration the Respondents point out that the Applicant has in its opposing affidavit to the summary application admitted that there was a contract entered into between the company represented by  Zuppa and the Applicant, a copy of which contract is presently not at hand. A copy of the general standard terms and conditions that form the agreement between the company and the defendant, (who is the Applicant in this application) has been attached to the declaration as annexure A. The terms thereof reflect inter alia that the company was to supply the Applicant with day old chickens and poultry feed on continuous basis on certain condition. One of the terms was that any variation to the contract shall be in writing for it to be binding. It is also alleged that the Applicant has had to furnish certain guarantees to the company in terms of clause 17 of this standard terms and conditions and that he has breached 	 one or more of the conditions by failing to:

  			16.1.  Pay the supply price of the day old chickens;

 			16.2 	Pay the supply price of the poultry feed;
	
  			16.3	 Pay for medical and vaccination provided 						 by the company; and /or

 		          16.4 	Supply all broilers reared to the company in						that the broilers were sold and delivered to the third					parties It is further stated that the company has 					performed all its obligations.

17.	 In its plea the Applicant has admitted that there is a 					contract he entered into with the company. He says that the 				standard terms were however altered but he cannot recall. It is hard  		to understand how one can say that the standard terms have been			 altered yet not recall in what manner and how such terms have 			been altered. He who alleges must prove. The Applicant in his own			 admission does not recall the terms to which the contract has been			 altered to and therefore there are no reasonable prospect of 			success on his part on this point. Since clause 17 of the standard 			terms provides that any variation to the contract shall be in writing, 			in the absence of such written variation the prospect of success of 			this defence is certainly dim. The Applicant’s further defence in the 			plea is that the company has failed to perform as it provided	 			substandard feed and that as the result of non performance there 			was a high mortality of the chickens. Strange enough the Applicant 			has not filed a counterclaim in regard to whatever damages he is 			supposed to have suffered as the result of the non or poor 				performance of the company. In any event, even if the Applicant 			had a claim against the liquidated company, such claim has long 			prescribed since the company was liquidated on the 27 January 			2003, and the Applicant’s alleged claim would have arisen in prior			 the liquidation. There is no explanation as regards what steps he 			took pre - liquidation to institute such claim as he now wants to 			allege to have had against the company. This must be seen in the 			light of the allegation that as the result of the none or poor 				performance by the company, the Applicant’s business declined 			with an amount of R688000.00

18.	 I am of the view that, not withstanding that the Applicant was 			granted leave to defend during the application for summary 				judgment, that does not mean that for purposes of this 				application, he must therefore be granted rescission of default 			judgment. It is one of the factors that I need to place on the overall 			scheme of thinks to determine whether I should grant him the 			rescission for default judgment.  I have placed on the balancing 			scale the lack of sufficient cause for the failure to attend court, the 			lack of the prospect of success on his alleged defence. I am 				therefore concluding that there is no bona fide defence on 				the merits. I need not canvass each and every denial or placing in 			dispute of every issue by the Applicant. If I am of the view that, as I 			am, the overall  the defence is doomed to fail, I am entitled 				under those circumstances to dismiss the application for 				rescission, as I did.  

19.	It is trite that the cost follow the event.

20.	It is for the above reasons that I dismissed the application for the rescission with costs.

N.M. MAVUNDLA
JUDGE OF THE HIGH COURT

HEARD ON THE:  06/03/2006
DATE OF JUDGMENT: 31/03/2006
APPICANT`S ATT: STATE ATT
APPLICANT`S ADV: S PHOSWANA
DEFENDANT`S ATT: SECHELE INC
DEFENDANT`S ADV: MOTEPE