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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO: 42841/2018

14/12/2018

 

In the matter bet ween:

 

S[….] L[….] S[….]                                                                    APPLICANT

S[….] M[….] S[….]                                                                    FIRST RESPONDENT

ID NO: [….]

 

and

 
GOVERNMENR EMPLOYEES PENSION FUND                    SECOND RESPONDENT

JUDGMENT

MOSOPA AJ:

[1]       This is an opposed application for rescission of judgment obtained in favour of the first respondent in the Ga-RANKUWA Regional Court under case number NW/O DI/RC /138/20 14 on the 04 September 2017 . The applicant avers in his papers that this application is brought in terms of Rule 31(a) and (b) alternately Rule 42 (1) (a) and (b) of the Uniform Rules of Court.

 

BACKGROUND

[2]        The applicant and the first respondent were married community of property on the 10 March 2006. One minor child, O[….] J[….] L[….], was born of the marriage relationship of the parties.

[3]        The applicant on the 31 March 2014 instituted divorce proceeding s against the first respondent in the Ga-Rankuwa Regional Court (Division of North West) under case number: NW/O01/RC/138 /20 14. The applicant the time of institution of the summons was not legally represented.

[4]        From the papers it is not clear as to when the applicants attorneys of record came on record on behalf of the applicant in the divorce proceedings. The applicant' s attorneys because they are based in Kempton Park they had to appoint correspondent attorneys in Mabopane which falls under the 15km radius. Mpya Attorneys. The respondent was also legally represented in the divorce action.

[5]        The applicant's attorneys were served with Rule 23(1) notice (Magistrate' s Court Rules) which they were requested to make discovery on oath within twenty days. all documents and tape, electronic. digital or other forms of recordings relating to any served on applicant's attorneys on the 09 May 2016.

[6]        The applicant failed to comply with the Rule 23(1) notice and the respondent made an application in terms of Rule 23(8) the compel the applicant lo comply with the Rule 23( I) notice the matter was set-down for hearing on the 15 March 2017 wherein the applicant was ordered to comply with the Rule 23(1) notice within 10 days of receipt of the order.

[7]        The applicant failed to comply with the order that led to the plaintiffs claim been strike out in terms of Rule 23(8) on the 07 July 2017.

[8]        The matter was eventually set-down for hearing for the divorce action on the 4 September 20 l7 and the matter proceeds on the unopposed basis due to the absence or the applicant.

 

DISCUSSION

[9]      Rule 49(1) of the Rules Regulating The Conduct of The Proceedings of the Magistrate's Courts of South Africa (Magistrate' s Court Rules) provides: 49 (1) A party to proceedings in which a default judgment has been given. or any person affected by such judgment, may within 20 days after obtaining knowledge of the judgment serve and file an application to court. on notice to all pai1ies to the proceedings, for a rescission or variation of the judgment and the court may, upon good cause shown. or if it is satisfied that there is good reason to do so, rescind or vary the default judgment on such terms as it deems fit: Provided that the 20 days period shall not be applicable to a request for rescission or variation of judgment brought in terms of sub- rule (5)".

[10]     Section 36 of the Magistrates Court Act 32 of 1944 provides;

“36 (1) The court may , upon application by any person affected thereby , or. in cases falling under paragraph(c) Suo Motu-

(a)       Rescind or vary judgment granted by it in the absence of the person of the person against whom that judgment was granted:

(b)       Rescind or vary any judgment granted by it which was void ab origine or was obtained by fraud or by mistake common to the parties:

(c)       Correct patent errors in any judgment in respect of which noappeal lies:

(d)       Rescind or vary judgment in respect of which no appeal lies.

 

(2)     If a plaintiff in whose favour a default judgment has been granted has agreed in writing that the judgment be rescinded or varied, a court must rescinded or vary such judgment on application by any person affected by it.

 

[11]     From the aforegoing it is clear that the current matter falls separately with the ambit of section 36(1) (a) of the Magistrate's Court Act, in that the divorce proceedings were instituted in the Ga- Rankuwa Regional Court and judgment was obtained in the absence of the applicant. Rule 49(1) also vests the Ga-Rankuwa Regional Court with jurisdiction to rescind the judgment obtained in the absence of the other party like it is in the current matter.

[12]     The first respondent in his answering affidavit raised a point in limine that this court lacks jurisdiction to adjudicate this matter because of the territorial jurisdiction and due to the fact that Magistrate's Court Act and Magistrates' Court Rules gives the Regional Court Rules to vary judgments made by that court.

[13]     lt is the applicants' contention that this court has inherent jurisdiction to adjudicate this application in the Regional Court. Further that by virtue of the fact that there is a minor child in the matter. this court is competent to deal with the rescission application.

[14]     In De Wet and Others v Western Bank Ltd Melamet J stated[1]:

“A court obviously has inherent power to control the procedure and proceedings in its court. This is done to facilitate the work of the courts and enable litigants to resolve their difference in a speedy and inexpensive a manner as possible. This has been recognised in many decided cases which arc collected by the learned authors of Herbstein and Van Winsen. the Civil Practice of the Superior Courts of South Africa, 2^nd ed. PP 20-21. This is my view, docs not include the right to interfere with the principle of the finality of judgments other than in circumstances specially provided for in the Rules or at common law. Such a power is not a necessary concomitant to the inherent power to control the procedure and proceedings in a court. I am of the opinion, as set out above, that the powers vested in the court in this regard, are specific powers vested in the Court over and above the powers to assist in this connection in the common law, in view· of the conclusion I reached, on the facts even if a discretion were vested in the Court. that I would not come to the assistance of the appellants. It is not necessary to express a final view on this aspect. I should point out that the authorities which I have consulted in this regard, and which recognise such inherent power of the court. all but one relate to the position before the introduction of the Uniform Rules of Court. In Roopnarain v Kama/apathy and Another[2], this conclusion was reached on an agreement between Counsel. On the other hand in Briston v Hill[3] the learned judgment came to the conclusion that a court did not have an inherent power Lo set aside a judgment by default and was limited to the provisions of the Rules or where the litigant makes out a case for restitution in interregnum at common law. (See also Swart v Absa Bank Ltd[4])".

[15]    Following the approach which was adopted by the court in the De Wet's matter it is clear that the court do s not have inherent power to set aside default judgments and only limited to the provisions of the Rules. The Magistrates· Court Act and Rules provides for the rescission of default judgment and the applicant should have followed the Act and the Rules and brought the application for rescission of the default judgment in the Regional Court. Most importantly the Regional Court is vested with jurisdiction to deal. with divorce matter s involving the determination of the minor's rights. The submission by Mr Mobobedi is therefore with no merit.

 

RESCI SSION OF DEFAULT JUDGMENT

[16]     As already alluded to above. the rescission of default judgment granted by the Regional Court can be made in terms of section 49 of the Magistrate s' Court Act and Rule 36 of the Magistrate Courts' Rule. An order of the High Court can only be set aside in terms of Rule 31(2) (b), Rule 42 (Uniform Rules of court) or on common law grounds.

[17]     In terms of Rule 31 (2) (b) the applicant in order to be successful must prove the following:

17.1.   That he/she was not in wilful default:

17.2.    That he/she has a reasonable explanation for default, and

17.3.    That he/she has a bona fide defence.

 

[18]     In terms of Rule 42. must show that:

18.1.   An order or judgment was erroneously sought or erroneously granted in the absence of any party affected thereby:

18.2.   An order or judgment in which there is an ambiguity, or a patent error or ambiguity. error or omission, and

18.3.   An order or judgment granted as a result or a mistake common to the parties.

 

[19]     In terms of common law. must show that:

19.1.   Fraud committed:

19.2.   Justus error:

19.3.   In certain exceptional circumstance when new documents have been discovered:

19.4.   Where judgment had been granted by default. And

19.5.   In the absence between the parties or a valid agreement to support the judgment. on the grounds of justa causa.

 

[20]     The applicant contents that his application is brought in terms of Rule31(2) alternatively Rule 42. T he only basis being that the notice of set down did not reach the applicant as such notice of set down was served at a wrong address by the respondent.

[21]     The applicant has throughout been represented b) Ntirnane Attorneys. On the 15 April 2015 the applicants correspondent attorneys was Mpya Attorneys with the address in Mabopane. On the 20 March 2017 the applicant's attorneys wrote a letter to the respondents· attorneys with the address attorneys wherein they informed the respondent’s attorneys are Thwane Attorneys with the address in Ga- Rankuwa . Despite this letter the applicants attorneys did not serve the respondent’s attorneys with the notice of withdrawal of the correspondent attorneys and the appointment of the new correspondent attorneys.

[22]     The respondent avers that when they attended to serve the not ice at the Mpya Attorneys they were informed that the applicant's attorneys are based at Kempton Park. The respondent attorneys then phoned the applicants attorneys of record who gave them the address of Mathumo Attorneys in Pretoria to serve the notice of set down. lt is because of this agreement that the notice in Pretoria. The applicant docs not any knowledge of Mathumo Attorneys but only allege that the respondent was supposed to have served the notice of set down at their Ga-Rankuwa correspondent’s attorneys. Moreover in the annexures to the founding affidavit. the applicant annexes an application for an interdict in term s of the Domestic Violence Act which bears Mathumo Attorneys as their correspondent’s attorneys.

[23]     The applicant failed to show that the default judgment was not obtained wilfully and that he has a bona fide defence to the first respondents· claim. Furthermore failed to show that judgment obtained in his absence " as erroneously sought or erroneously granted.

[24]     The applicant claim was struck in terms of Rule 23(8) of the Magistrates Court and the applicant did nothing to remedy such situation. The applicant was vexations in the conduct of his litigation in the Regional Court and the application cannot succeed.

 

ORDER

[25]     I therefore make the following order:

1)      The application is dismissed

2)      The applicant is ordered to pay the respondent' s costs

 

 

 

MJ MOSOPA

ACTING JUDGE OF THE HIGH COURT, PRETORIA

Appearances

For applicant           : Adv Molobedi

Instructed               : Ntimane Attorneys

For respondent       : Adv P.R Msanle

Instructed by           : Mokgara Attorneys

Date of hearing       : 10 October 2018

Date of Judgment   : 4 December 2018

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