Written by Loyiso Bavuma and checked by Simone Jansen van Rensburg
- This matter relates to an application for the rescission of a default judgment, a request for an order for costs in respect of proceedings which did not occur on 4 May 2020 and a request for condonation by the applicants for the late filing of the replying affidavit.
- The parties in this matter are Kgalemo Construction (Pty) Ltd (the “First Applicant”), Semeenee Wilhelmina Aphane (the “Second Applicant”) and Lehumo Makgalemele Aphane (the “Third Applicant”), are hereinafter jointly referred to as “the Applicants”.The Third Applicant is a director of the First Applicant and resides with the Second Applicant. The respondent is Iliad Africa Trading (Pty) Ltd (the “Respondent”).
- The Respondent served a summons on the Applicants on 30 May 2019 at an address in Lyttelton which was described as the Applicants’ chosen domicilium. All 3 returns of service stated, “Kindly take note that the defendants are (sic) unknown at the given address.” A default judgment was granted against the Applicants on 18 June 2019. The Applicants averred that they only became aware of the default judgment on 26 July 2019, upon service of a warrant of execution.
- Thereafter, the Applicant brought this rescission application, with the notice of motion dated 16 September 2019. In their founding affidavit, the Applicants referenced the 20-day period prescribed by Rule 31(2)(b), but no accompanying condonation application was delivered in respect of the rescission application. The Applicants stated that a condonation application would be time-consuming and expensive, but that it would be brought if necessary.
- The Applicants argued that their default was not wilful, that the rescission application was made bona fide and that the Applicants had a bona fide defence to the Respondent’s claim. The Applicants also stated that the registered address of the First Applicant had changed to Montana Park, evidenced by a CIPC search. The First and Second Applicant had also changed their physical addresses. Accordingly, the Applicants argued that all this information was known to the Respondent.
- Thereafter, the Applicants failed to deliver their replying affidavit. Notwithstanding, the Respondent set the matter down for hearing on 14 April 2020. Due to COVID-19 and the subsequent national lockdown, the matter was automatically removed and re-enrolled for 4 May 2020. In the absence of the replying affidavit, the matter was removed from the roll with costs reserved.
- The Applicants’ replying affidavit was eventually delivered on 10 June 2020 and stated that a substantive condonation application would be filed simultaneously, however, this did not occur. The Applicants explained that this failure was due to a lack of funds, a change of attorney, a change in the Respondent’s attorney’s address and lockdown circumstances. In addition, the issue of prescription of the claim was also raised.
- The Court held that both parties did not approach this case in a sensible and practical manner but attempted to obtain every possible advantage over one another at the other party’s expense. The court further held that litigation is not some type of game intended for that type of approach and conversely that it should be conducted as expeditiously and cost-effectively as possible. Undue formalisation should be avoided as well as stringent adherence to the Rules of the Court to avoid a real or imagined loss. The ultimate aim is to bring a matter to trial speedily and effectively and with all relevant facts being before the Court.
- In relation to the Applicants’ apathy in delivering a condonation application together with their rescission application, the Court held that there is no reason why it should tolerate laxity or incompetence.
- Regarding the summons, the Court held that whilst service at a chosen domicilium acceptable in the normal course of events, the sheriff’s comments ought to have alerted the Respondent’s attorney and motivated him to make enquiries as to the correct whereabouts of the Applicants.
- The Court held that generally default judgment would not be granted where such a comment appears, as it is inevitable that in due course a rescission application will follow, and that further time and costs will likely be wasted.
- Regarding the Applicants’ condonation application in respect of their replying affidavit, the Court held that it lacked the necessary details which ought to cover the entire period of the delay as would be required. As such, the Court found that the Applicants should be liable for the wasted costs for this day.
- Notwithstanding the Applicants’ defective rescission and condonation applications, the Court stated that good cause had been shown to grant the orders sought in the exercise of its discretion. This was primarily in relation to the conduct of the Respondent.
- A section 129 Notice in terms of the National Credit Act 34 of 2005 (appended to the Particulars of Claim) was served on the current address of the First Applicant. This fact, read with the sheriff’s comments on the abovementioned Returns of Service, indicated that the Respondent’s conduct deserved censure and that higher standards are expected.
- Rules exist for the benefit of the Court which has a wide discretionary power to condone any non-compliance should sound reasons exist in the circumstances. As such, the Court held that:
15.1 the Applicants were to pay the wasted costs of the hearing on 4 May 2020 jointly and severally, the one paying the others to be absolved;
15.2 the default judgment granted against the Applicants on 18 June 2019 was set aside and
15.3 the Applicants were to pay the costs of this application (including the condonation application), jointly and severally the one paying the others to be absolved.
This case shows the Court’s discretion regarding condoning non-compliance with the rules of court and serves as a reminder of the good faith with which litigation ought to be conducted.