IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NO: 24922/06
DATE: 22/05/2007
REPORTABLE

In the matter between

DIKELEDI WINNIE MASANGO						      Applicant

and

KIMBERLY CLARK OF SOUTH AFRICA (PTY) LTD			  Respondent

IN RE:

KIMBERLY CLARK OF SOUTH AFRICA (PTY) LTD			         Plaintiff

and

DIKELEDI WINNIE MASANGO						    Defendant

________________________________________________________________
JUDGMENT
________________________________________________________________

MURPHY J

1.	The applicant seeks an order rescinding the summary judgment granted 	by Ledwaba J on 2 November 2006.  The summary judgment was based 	

	upon a suretyship which the applicant signed on behalf of Kganane 	Trading Enterprises CC (now in liquidation) of which she was the sole 	member.

2.	It is not stated in the founding affidavit (and no heads of argument were 	filed on behalf of the applicant) whether the application for rescission was 	brought in terms of the common law or rule 42.

3.	In terms of the common law the applicant is obliged to show that the 	judgment against her was obtained on default of appearance and that 	sufficient cause exists for its rescission - De Wet and others v Western 	Bank Ltd 1979(2) 1031 (AD) at 1042 F-H.  The requirement of sufficient 	cause is made up of two elements, namely there must be a reasonable 	and acceptable explanation for default and the applicant must have a 	bona fide defence which carries some prospect of success.

4.	In terms of rule 42 a party may seek rescission of a judgment erroneously 	sought or erroneously granted in the absence of that party.

5.	In its answering affidavit the respondent avers that the judgment was not 	granted in the absence of the applicant, who it claims was not in default of 	

	appearance, but was in fact present and participated when the judgment 	was handed down.

6.	The applicant’s version of what transpired at the proceedings of 2 	November 2006 is cryptic.  The relevant provisions of her founding 	affidavit read:

“44	On the initial date of the hearing, on 17 October 2006, a request for 	postponement was made with the sole purpose of seeking an indulgence 	to file an opposing affidavit.  The reason for the request for 	postponement was that the bookkeeper needed a period of at least two 	weeks.  Such postponement was granted until 02 November 2006.  I 	attach herein a letter from my erstwhile attorney, together with the court 	order as annexures WM 4 and WM 5 respectively.

45	Immediately before the hearing on 02 November 2006, I was informed by 	my attorney that they will again seek postponement.  I then realised that 	they have not prepared the required papers to oppose this application.  I 	then took my file and went on to look for another attorney.

46	When the summary judgment was heard on 02 November 2006, I was 	not represented by an attorney, I appeared myself in court to request an 	indulgence to properly find an attorney that will prepare the necessary 	paper work to present my defence.

47	The plaintiff argued against postponement and thereafter summary 	judgment was granted against me.

48	I submit that this matter was heard without my participation as my 	presence in court was only to merely ask for postponement.  As soon as 	postponement was refused the plaintiff moved for summary judgment 	basically by default.”

7.	The explanation is lacking in particularity as to time, the names of the 	attorneys involved, the reasons of the judge and whether the judge heard 	any oral evidence or submissions in regard to the application for summary 	judgment. No transcription of the proceedings is annexed, or any 	confirmatory affidavit of the attorneys.  The respondent denies that the 	matter was heard without the applicant’s participation, as she was present 	in court when judgment was granted.

8.	The issue then is whether judgment was granted in default of appearance 	or in the absence of the applicant.

9.	In Katritsis v De Macedo 1966(1) 618 (A) the court made reference to 	Voet, 2.11.11 to determine what is meant by default of appearance.  The 	passage reads:

“Moreover not only is he who does not attend at all on the day fixed to be accounted a dallier and defaulter, but also he who does indeed attend, but does not take in hand the business for the taking in hand of which the day had been appointed.  For instance a plaintiff appears and makes no claim; or a defendant does not challenge the plaintiff’s claim when he should do so.  He who though present makes no defence is surely reckoned in the position of one who is not there; and he who when called upon does not plead is deemed to have been futile and is expressly classed as contumacious.”

	Van Blerk JA interpreted this statement to mean that a party who appears 	when the hearing starts, but thereafter withdraws, and absents himself 	from the remainder of the proceedings, must also be accounted a 	defaulter.

10.	In the present matter the evidence is not clear or satisfactory about 	whether the applicant after unsuccessfully seeking a postponement took 	“in hand the business for the taking in hand of which the day had been 	appointed”.  If she did, she was not a defaulter; if she did not, the 	judgment was granted in default of her appearance.  Her claim is to the 	effect that she ceased participating after the postponement was refused 	and that “the plaintiff moved for summary judgment basically by default”. It 	is not clear to me what she means by that.  It remains uncertain whether 	the judge engaged with her on the merits of her defence in the summary 	judgment application. The respondent’s denial that the applicant failed to 	

	participate is 	somewhat thin and provides no detail or particulars of the 	nature and extent of her participation.  The fact that she did not file an 	opposing affidavit in the summary judgment application in terms of rule 32 	is not conclusive because the presiding judge always has a discretion to 	hear oral evidence (see Meek v Kruger 1958(3) SA 154 (T)) and there is 	no evidence before me indicating whether he did or did not do so.  To 	compound the difficulty, the applicant did not file a replying affidavit or 	heads of argument.

11.	Even though the respondent’s averment that the applicant participated in 	the summary judgment lacks substance as to the details of her 	participation, it placed the matter squarely in issue and as such begged a 	reply that could have been easily met with a transcript of the proceedings.  	The failure by the applicant to file a reply means that she has failed to 	make out a case for the relief claimed, such entitlement being dependant 	upon her showing that she was in default of appearance when judgment 	was granted.  The facts stated by the respondent together with the facts 	stated by the applicant admitted by the respondent do not justify the order 	sought.  Had the dispute of fact remained unresolved after the filing of a 	replying affidavit, there may have been some justification for referring that 	question to oral evidence, but absent a reply I am not minded to do so.

12.	In the final analysis the applicant has failed to discharge her onus to show 	that the judgment was granted in default of her appearance or in her 	absence, with the result that the pre-requisites of an application for 	rescission have not been met.

13.	In the result, the application is dismissed with costs.

JR MURPHY
JUDGE OF THE HIGH COURT

Date Heard:			16 May 2007
For the Applicant:		Adv MM Mojapelo, Pretoria
Instructed By:		Selahle Attorneys, Pretoria
For the Respondent:	Adv BM Jackson, Sandton
Instructed By:		Orelowitz Inc c/o Jacobson & Levy, Pretoria