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Phakathi and Others v Van Vos Lens Property Development CC (LCC51/03) [2003] ZALCC 36 (25 August 2003)

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JUDGMENT

GILDENHUYS J:

[ 1 ] The applicants in this matter are Mr Jambloed Phakathi, his wife and four of his children. I will refer to them as the Phakati family. The respondent is Van Vos Lens Property Development CC, a close corporation. I will refer to it as Van Vos Lens. Van Vos Lens is the owner of Subdivision 2 of Kommissiekraal farm, also known as Saagkuilsnek, district of Utrecht, KwaZuIu-Natal. I will refer to it as the farm. Until recently, the Phakathi family lived on the farm.

[2] Van Vos Lens instituted an action in this Court in case no 51/2002 against the Phakati family for their eviction from the farm The action was not defended. On 17 June 2003 I gave default judgment against the Phakati family as follows:

"1. Die Eerste tot Sesde Verweerders sow el as hut familielede en Eerste Venveerder sc geassosieerdes word hiermee gelas om die plaas Ondcrverdeling 2 van "Kommissiekraal". ook bekend as “SaagkuiJsnek". Distrik Utrecht. ic ontniim tesame met hullevee en goedere teen nie later nie as 30 Junie 2003

2. Die Eerste tot Sesde Venveerders en Eerste Vervveerder se geassosieerdes word hiermee gemagtig om enige structure en verbeterings wat hulle op die plaas aangebring het af te breek en die materiaal wat so heroin word, te venvyder teen nie later nie as 30 Junie 2003

3 Die Balju van die distrik van Utrecht word hiermee gelas om. Indien enige van die Eerste tot Sesde Venveerders sou verstitm om te voldoen aan die Bevel in bede I hierbo. sodanige Vcrweerders, hul familielede en enige geassosieerdes (van Eerste Verweerder) asook hul vee en goedere uit te sit van die plaas Onderverdeling 2 van "Konimtssiekraal". ook bekend as •"Saagkuilsnek". distrik Utrecht.

4. Die Eesrste Vervveerder gelas om die Eiser se regskoste. soos getakseer te word tussen partv en party en te banal"

[3] According to a return of service forming part of the record, the Deputy Sheriff purported to serve the eviction order on Mr Jambloed Phakathi on 20 June 2003 -

"deur die oorspronklike bevel aan Jabulani Phakathi vvoonagtig saam met verwecrder Jambloed Phakathi "'n persoon vermoedelik nie jongeras 16 jaar te toon. 'n afskrif aan horn te oorhandig en terselfdcrtyd die aard en ems van die saak aan horn te verduidelik."

Mr Jambloed Phakathi alleged that the sheriffserved legal documents on his 15 year old daughter Sesi Phakathi during July 2003, and told her that the Phakathi family'must leave the farm. Mr Jambloed Phakathi does not know who Jabulani Phakathi is.

[4] On 16 July 2003 Van Vos Lens, through the sheriff, evicted the Phakathi family from the farm. They were moved in a truck belonging to Van Vos Lens to the Wakkerstroom area. They now live in informal structures erected on land which a local family allowed them to occupy on a temporary basis. Their erstwhile dwellings on the farm were demolished by Van Vos Lens.

[5] By Notice of Motion dated 12 August 2003 the Phakathi family applied for the following relief:

"l.

2. That the default judgment granted against the Applicants herein on 17 June 2003 incase number; LCC51/02 is hereby rescinded, and the Applicants are granted leave to defend the proceedings.

3. That the Respondent be ordered to pay the costs or this application onlv m the event thai it unsuccessfully opposes tins application.

4 Further, other or alternative relief."

The application was opposed. Mr Lens (on behalf of Van Vos Lens) delivered an answering affidavit and Mr Jambloed Phakathi delivered a replying affidavit. I heard the application on an urgent basis on 25 August 2003.

[6] The Phakathi family is comprised of unsophisticated people. Mr Jambloed Phakathi, in his founding and replying affidavits, deals at some length with his family's efforts at preventing an eviction order being granted against them. Mr deWet, who appeared for the respondent, accused the family members of indifference towards the legal processes instituted against them I need not go into these accusations in any great detail. Of importance is a meeting during March 2003 between Mr Jambloed Phakathi and Mr Mbugisa, a member of the professional legal team of the Natal University's Campus Law Clinic. At this meeting Mr Phakathi instructed Mr Mbugisa to defend the application brought by Van Vos Lens against them. Mr Mbugisa attested to an affidavit in which he stated that he forgot about his meeting with Mr Jambloed Phakathi and - in error -omitted to carry out his mandate to defend the action.

[7] Mr Jambloed Phakathi alleged that he first became aware of the eviction order against his family in early to mid July 2003, after the sheriff told his daughter that the family must vacate the farm. The legal document served on Sesi Phakathi¹ was in Afrikaans, which nobody in the family could understand. Mr Jambloed Phakathi's wife handed the document to another resident on the farm, a Mr Shabangu, who undertook to take it to the Department of Land Affairs and to get the Department's assistance. Before that could happen, and on 16 July 2003, the Phakathi family was evicted.

[8] It is common cause that, at least until shortly before his eviction, Mr Jambloed Phakathi was a labour tenant as defined in the Land Reform (Labour Tenants) Act.² He sets out his family's defence against the eviction application as follows:

"16.3.1 As mentioned above. I am a 'labour tenant' and the other Applicants are my "associates' as defined in Act 3 of 1996. As such we may only be evicted in circumstances referred to in section 7(2) of the said Act. I deny that the peremptory circumstances contemplated in that section exist in this matter, in that:

(a) I deny thai our family has withheld their sen-ices from the Respondent As explained above, such services have always been tendered, and it is the respondent who has refused to make use thereof I am ad\ised and I respectfully submit that in terms of section 7(2)(a) of the Act. if the Respondent wishes to rely upon our alleged failure (o provide labour to him. as a ground for our eviction, the Respondent is required to furnish us with one month's notice calling on us to provide such labour. As stated above, such a notice has never been delivered to us by the Respondent.

(b) I deny that I or the other applicants are guilty of having committed such a material bread) of the relationship between us and the Respondent such that it is not practically possible to remedy it. either at all or in a manner which could reasonably restore the relationship. As stated above, the Fourth Applicant is the only person to have been found guilty of a criminal offence, and in any event he denies that he is guilty thereof. Even in the event of indeed being guilty. I respectfully submit that the charges are not of such a serious nature that they would constitute such a material breach of the aforesaid relationship. I submit that the sentence handed-down to the Fourih Applicant in this regard relatively is indicative of this fact.

(c) I deny that it is just an equitable for this Honourable Court (a grant an eviction order herein.

16.3.2. An application in terms Section 16 of the aforementioned Act has been lodged by nie on behalf of my family and in respect of a portion of the Farm including the land occupied and used by the Applicants until their recent eviction. This claim is still pending. I annex hereto marked "A" copy of a letter from the Department of Land Affairs confirming this fact. Special circumstances do not exist which make it fair, and just and equitable - taking all of the relevant circumstances into account - to evict the First Defendant and his associates, as required by section 14 of the Act. In the premises, I respectfully submit that the Respondent is not entitled to the relief sought herein.

16.3.3. I have also lodged a claim in respect of the Farm in terms of the Restitution of Land Rights Act 22 of1994. pursuant to the dispossession of rights in land in the Farm as previously held by my parents and certain other persons, and as a result of racially discriminatory laws and I or practices after 1913. This claim too is still currently pending with the KwaZulu-Natal Regional Land Claims Commission. My family and I were in occupation of the claimed land as at the date of commencement of the aforementioned Act. I am uncertain as to whether our notice of our claim has been published as required by section 7 of that Act, and I am currently investigating this. I however respectfully submit that if this is the case, in terms of section 7(b) of that Act my family and I may not be evicted from the Farm unless the requirements of that section arc met."

[9] Mr Lens, on behalf of the respondent, answered as follows:

"Nadatdie Derde. Vierde en Vyfde Applikante gearresteer was op die aanklagte van huisbraak met die opset om te steel en diefstal. het Derde Applikant opgehou om diens te iewer en net die huurarbeidersooreenkoms tussen Respondent en die Eerste Applikant tot "n eindegekom. Die verhouding tussen die Respondent en die Eerste Applikant is onherstelbaar geskaad deur die optredes van die gemelde Applikante, Eerste Applikant het die huurarbeidersooreenkoms geabandoneer en geeneen van die Applikante het ooit weer gewerk nie. Hulle het ook geen dienste getender nie."

The respondent furthermore denied that an application was lodged under section 16 of the Land Reform (Labour Tenants) Act, or an application for restitution under the Restitution of Land Rights Act.³

[10] Van Vos Lens raised two points ;'/; limine. The first is that in its notice of motion the Phakathi family only prayed that the default judgment in case no 51/2002 be rescinded and that the family be granted leave to defend the proceedings. The family does not ask that their possession be restored. Consequently, even if the default judgment is rescidend, the Phakathi family will not be entitled to return to the farm, at least not before the finalisation of case no 51/2002.

[11] In the case oUasmat andAnother vBhana⁴ the respondent obtained a judgment in default of appearance restoring him to the possession of certain premises which he claimed he was entitled to occupy under a lease. He took out a writ to enforce the judgment. The son of the petitioners who then occupied the premises, vacated the premises and the respondent re-occupied them. The petitioners thereafter applied for and obtained recission of the default judgment. The respondent remained in occupation of the premises, despite being requested to vacate. The petitioners applied to the Transvaal Provincial Division of the Supreme Court for an order restoring possession of the premises to the first petitioner and ejecting the respondent from the premises. The matter came before de Wet J, who dismissed the application. The petitioners lodged an appeal to the full bench, and on appeal an order to restore possession of the premises to the first petitioner was granted. In the judgment, Neser J held as follows:⁵

"Respondent is presently in occupation of the premises solely by reason of the judgment which has been rescinded. That judgment is a nullity and respondent can clearly derive no advantage therefrom nor can petitioners labour under any disadvantage as a result of that judgement. In my opinion peiitioners are entitled to claim that any or any disadvantage caused thereby to themselves should be set aside and that the status quo prior to the judgment be restored. There is no question of spoliation As the default judgment is now a nullity, first petitioner is entitled to use the premises as she wills'

Lucas J and Bresler AJ, in concurring judgments, came to a similar conclusion That decision was subsequently followed in the case of Loitering v SA Motor Acceptance Corporation Ltd⁶

[12] It was held InMaisel v Carnberleigh Court (Pty) Ltd⁷ that where an owner has ejected a tenant from premises by means of a judgment which has subsequently been set aside, the tenant is entitled to be put back in occupation of the premises until evicted by proper process of law. The onus is on the owner to show that he cannot comply with the order, if such be the case. In that case, an order for the ejectment of the owner from the premises was granted.

[13] In all of the above cases, a specific order for the restitution of possession was prayed for and given. Mr Goddard, who appeared for the Phakathi family, asked for such an order under the prayer for alternative relief Mr de Wet objected. He submitted that the issues relating to an order for the restoration of possession have not been fully canvassed in the affidavits. There are merits in Mr de Wet's submission. The dwellings which the Phakathi family occupied, were demolished If possession is restored to the family, where will they live? If the dwellings have to be rebuilt, who must rebuild them? May the Phakathi family take building materials (such as thatch) from the farm. In the light of the deteriorated relationship between the parties, Van Vos Lens may decide to bring a counter application under section 15 of the Land Reform (Labour Tenants) Act to secure the absence of the Phakathi family from the farm pending the outcome of proceedings for a final order in case no 51/2002.

[14] It is unfortunate that the Phakathi family may be forced to bring another application to secure their return to the farm, if the eviction order of 17 June 2003 is rescinded. Their legal representatives were, however, made aware of the point in limine several days before the hearing They could have asked for an amendment of their notice of motion to include the requisite additional prayers, even if it would have involved the delivery of further affidavits and a postponement of the hearing. It is to be hoped that, if needs be, the parties will be able to reach a satisfactory agreement between them and that further litigation will be avoided.

[15] The second point in limine taken by Van Vos Lens is that the rescission application was brought out of time. Rule 58(6) of the Land Claims Court Rules reads

"A party may apply to the Court to rescind or vary any judgment or order granted in his or her absence, provided the application is filed within twenty davs after he or she became aware of the judgment or order."

(My underlining)

There are conflicting allegations as to when Mr Jambloed Phakathi became aware of the eviction order. Be that as it may, I am entitled to condone any non-compliance with the Rules.⁸ As will appear from this judgment, the Phakathi family at all relevant times set out to resist their eviction. If it is so that the rescission application was filed later than twenty days after the Phakathi family became aware of the eviction order, I am entitled to condone (as I hereby do) the late filing thereof That disposes of the second point in limine.

[16] I revert to the merits of the rescission application. A default judgment may be rescinded if "good cause" for the rescission is shown.⁹ "Good cause" was defined in Chetty v Lew Society; Transvaal¹⁰ as follows:

"The term "sufficient cause" (or "good cause") defies precise or comprehensive definition, for many and various factors require to be considered. (See Cairn's Executors vGaarn 1912 AD 182 at l86 per INNES JA.) 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:

(i) that the party seeking relief must present a reasonable and acceptable explanation for his default;
and

(ii) that on the merits such party has a bona fide defence which, prima facie, carries some prospect
of success."

Coetzee J in Marais v Standard Credit Corporation Ltd¹¹ reiterated that "good cause" is made up of two essential elements, viz a reasonable and acceptable explanation for the default and a bona fide defence, which prima facie carries some prospects of success.

[17] I now proceed to deal with the first element of "good cause" The explanation tendered for the default is Mr Mbugisa's failure to carry out his instructions to enter an appearance to defend the application. Although Mr Mbugisa's failure is subject to criticism, must be remembered that he took his instructions on Saturday 8 March 2003 at a meeting which took place during a circuit visit by the Campus Law Clinic to the Newcastle area. Mr Mbugiza returned to his office in Durban the following Monday. He then forgot about the matter. His lapse of memory is understandable.

[18] In the case of de Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd¹² the gross negligence of a firm of attorneys, consisting of a complete failure to attend to a case over a long period of time, led to a default judgment against their client in a magistrate's court. The client applied for rescission of the judgment. The magistrate refused, and the client appealed to the Supreme Court The appeal was successful. Jones J described the approach to be adopted as follows:

"The magistrate's reasons correctly place emphasis on the neglect of the defendant's attorney which is. after alt. the most significant feature which resulted in default judgment being taken against their client. But he does so out of context. The correct approach is not to look at the adequacy or otherwise of the reasons for the failure to file a plea in isolation. Instead, the explanation, be it good. bad. or indifferent, must be considered in the light of nature of the defence, which is an all-important consideration, and in the light of all the facts and circumstances of the case as a whole. In this way the magistrate places himself in a position to make a proper evaluation of the defendant's bona fides, and thereby to decide whether or not, in all the circumstances, it is appropriate to make the client bear the consequences of the fault of its attorneys as in Satoojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A). An application for rescission is never simply an enquiry whether or not to penalise a party for his failure to follow the rules and procedures laid down for civil proceedings in our courts. The question is. rather, whether or not the explanation for the default and any accompanying conduct by the defaulter, be it wilful or negligent or otherwise, gives rise to the probable inference that there is no bona fide defence, and hence that the application for recission is not bona fide. The magistrate's discretion to rescind the judgments of his court is therefore primarily designed to enable him to do justice between the parties. He should exercise that discretion by balancing the interests of the parties, bearing in mind the considerations referred to in Grant v Plumbers (Pty) Ltd (supra) and HDS Construction (Ply) Ltd v Wait (supra) and also any prejudice which might be occasioned by the outcome of the application. He should also do his best to advance the good administration of justice. In the present contexl this involves weighing the need, on the one hand, to uphold the judgments of the courts which are properly taken in accordance with accepted procedures and. on the other hand, the need to prevent the possible injustice of a judgment being executed where it should never have been taken in the first place, particularly where it is taken in a parry's absence without evidence and without his defence having been raised and heard."

[19] Mr de Wet submitted that, after the Phakathi family instructed Mr Mbugiza to enter an appearance to defend the matter, they should have followed up and made sure that he did so. In this connection, the remarks of Smalberger J (as then was) in the case of HDS Constructions (Pry) Ltd v Wait are apposite:¹³

"The defendant's default in the present matter was not due to any neglect or fault on its part or on the pan of its officials. On the analogy of the decision in Webster and Another v Santaiu Insurance Co Ltd 1977 (2) SA S74 (A) at 883 it may well be that good cause can be said to exist in a matter such as the present where the default was due solely to the conduct of the attorney, and his negligence, whatever the degree thereof, could not reasonably have been foreseen, appreciated or guarded against by the client, so that such negligence will only operate against a defendant who could reasonably have been expected to have knowledge thereof, and who failed to take reasonable steps to remedy the situation."

The Phakathi family is comprised of unsophisticated people, who live far away from the offices of the Campus Law Clinic. I do not agree that, during the three months which have passed from the date of the instructions to the date of the default judgment, the family had any duty to enquire from Mr Mbugiza about the progress of their defence. In this respect, the facts in the present case differ from the facts in the case of De Wet of id Others v Western Bank Ltd¹⁴ on which Mr de Wet relied. In the latter case the appellants -

" appear to have manifested a complete disinterest in the conduct of the case after the interim

settlement on 19 February 1973, and they have not proffered any acceptable explanation for their failure to keep in touch with Coligiounis, or with Lebos for that matter, as to the progress of the proceedings during the three and a half year period subsequent to the interim settlement."

[20] In the case of Mnandi Property Development CC v Beimore Development CC¹⁵ Blieden

J held that the purpose of the High Court rule dealing with the rescission of default judgments -

"... is not to punish litigants who have failed to follow the rules and procedures laid down for civil proceedings. It is there to ensure that the defendant, who bona fide wishes to defend a case, is given the opportunity to do so despite his not having entered appearance to defend ttmeously."

In my view, the same reasoning applies to Rule 58 of the Land Claims Court Rules.

[21 ] That brings me to the second component of "good cause", being a bonafide defence. The requirements to be met were described by Coetzee J in Marais v Standard Credit Corporation Ltd¹⁶ as follows:

"It is sufficient if the applicant 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."

[22] I have quoted the defence put up by the Phakathi family members against their eviction from the farm in some detail earlier in this judgment.¹⁷ The defence is not far-fetched or fanciful. If the averments are proved, it would entitle the family to continue living on the farm, It is clear from the facts of this case that the family never acquiesced in the eviction, and at all relevant times intended to avail themselves of their rights under the Land Reform (Labour Tenants) Act and the Restitution of Land Rights Act. ,

[23] In my view, the application for the rescission of my order of 17 June 2003 must be granted. The Phakathi family should, however, be ordered to pay the wasted costs of Van Vos Lens, being the costs of obtaining the default judgment and for implementing the eviction on 16 July 2003 (including the sheriffs costs). Such costs have become wasted through no fault of Van Vos Lens, and it is not fair that Van Vos Lens should pay it. Apart from such order, and in line with the usual practice of this Court, no order as to costs will be made

[24] It is ordered as follows:

(I) The default judgment granted against the applicants herein on 17 June 2003 in case number LCC 51/02 is hereby rescinded, and the applicants are granted leave to defend the proceedings.

(ii) The applicants herein musi, jointly and several!}. pay the respondent's wasted costs in case number LCC 51/02. such costs being the costs for obtaining default judgment and for effecting their eviction, as taxed between parly and part}

(iii) No order is made as to the costs of this application

JUDGE A GILDENHUYS

3 SEPTEMBER 2003

For the Applicants:

Adv GD Goddard. instructed by Campus Law Clinic

For the Respondent:

Adv A de Wet, instructed by Cox and Partners

1 See para [3 ] above

2 Act 3 of 1996.

3 Act 22 of 1994.

4 1951 (2) SA 496 (T).

5 At 499 F-H.

6 1962 (4) SA 1 (ECD).

7 1953 (4) SA371 (CJ.

8 Rule 32(4)(b) of the Land Claims Court Rules

9 Rule 59(7) of the Land Claims Court Rules.>