CASE NO. 656/99
IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

TECHNICON NORTH WEST			APPELLANT

and

RENÈ DE VILLIERS		RESPONDENT

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CIVIL APPEAL (FULL BENCH)
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MOGOENG  J.

[1]	This is an appeal against Khumalo J’s decision to refuse the Appellant’s application for (i) the condonation of the late-filing of its application for the rescission of the default judgment granted against it on 04 November 2001 and (ii) the rescission of the judgment itself.

[2]	In his well-reasoned judgment, and with reference to the relevant facts and authorities, Khumalo J dismissed the application on the grounds that the Appellant:

a)	was in wilful default;

b)	failed to give a full or satisfactory explanation of its failure to file the notice of intention to defend timeously;  and
c)	failed to show that it had a bona fide defence to the Respondent’s claim.

[3]	The aforegoing decision is a matter which falls squarely within the discretion of the Court a quo.  The exercise of that discretion should not be interfered with lightly on appeal.  This position was more aptly articulated by Jones J in DE WITTS AUTO BODY REPAIRS (PTY) LTD  v FEDGEN INSURANCE CO LTD 1994 (4) SA 705 (E) at 709F as follows:

“ In supporting the magistrate’s decision not to rescind, Mr Daubermann stressed that the matter is one for the discretion of the magistrate, and that a Court of appeal is not at liberty to upset his decision merely because it thinks that it would have probably come to a different conclusion on the facts.  That is correct.  But a magistrate is bound to exercise his discretion judicially in the light of the considerations referred to above, and any other considerations which might be relevant.”

[4]	This Court would only have the power to interfere with the discretionary decision of the Court a quo if the Appellant could demonstrate that the decision of the Court a quo was vitiated by misdirection or irregularity or the absence of grounds on which a Court, acting reasonably, could have made that particular order.  ATTORNEY-GENERAL, EASTERN CAPE  v BLOM & OTHERS 1988 (4) SA 645 (A) at 670D put differently, the appellate Court will only be entitled to interfere with a discretionary decision if it is ‘plainly wrong’.  BEAUMONT  v  BEAUMONT 1987 (1) SA 967 (A) at 1002D.  It is under these circumstances that a Judge could be said to have failed to exercise his or her discretion judicially.

[5]	I have indicated above that the decision of the Court a quo is well-reasoned, and it is indeed supported by the facts and the relevant case law.  I can find no basis whatsoever to even suggest that Khumalo J’s decision was plainly wrong.  This being the only ground that would entitle us to interfere with Khumalo J’s decision, there is therefore no valid grounds for interference.

[6]	In the result the appeal must fail with costs.

       M.T.R.  MOGOENG
     JUDGE OF THE HIGH COURT

I agree

M.W. FRIEDMAN
JUDGE PRESIDENT

I agree

H.N. HENDLER
JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING    	:  11 MAY 2001
DATE OF JUDGMENT				:  24 MAY 2001

COUNSEL FOR APPELLANT	:  ADV  C.J ZWIEGELAAR
COUNSEL FOR RESPONDENT			:  ADV  J.H.F PISTOR

ATTORNEYS FOR APPELLANT	:  A K AHMED
ATTORNEYS FOR RESPONDENT		:  EHLERS & PARTNERS 
  c/o NIENABER & WISSING ATTORNEYS