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CASE NO. CA 12/2006

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THAMINDRAN CHETTY APPELLANT

and

OCKERT MACHIEL JANSEN VAN NIEUWENHUIZEN RESPONDENT

____________________________________________________________________________

JUDGMENT

____________________________________________________________________________

MOGOENG JP.

[1] This is an appeal against a judgment of the district court refusing an application for the rescission of a default judgment.

[2] For convenience, the parties will hereafter be referred to as in the trial. The facts on which the judgment sought to be rescinded are based, relate to the interrogation of the Defendant (Appellant) by the Plaintiff (Respondent). That interrogation was apparently about acts of misconduct which the employer suspected the Defendant of having committed. During the course of questioning the Defendant about his conduct, certain remarks were passed by the Defendant about the Plaintiff. As a result thereof, the Plaintiff instituted action for defamation against the Defendant. A detailed list of the offending remarks, which seem to be prima facie defamatory, was set out in the Particulars of the Plaintiff’s claim.

[3] Service of the combined summons was effected on the Defendant. He did not file any notice to defend or a plea or counterclaim. Instead, he called the Plaintiff, apologised to him and proposed a settlement. A written settlement proposal was sent by the Plaintiff’s attorneys to the Defendant, but he neither accepted nor rejected the settlement proposal.

[4] More than 30 days after the expiry of the dies induciae, and more than 30 days after the Defendant had received the settlement proposal, the Plaintiff enrolled the matter for hearing. Default judgment was then granted against the Defendant.

[5] Pursuant to the default judgment, a writ of execution was issued and the Defendant’s property was accordingly attached. It was then that the Defendant set in motion, the process of applying for the rescission of the aforementioned default judgment.

[6] The application was made but was dismissed with costs by a Magistrate other than the one who granted the default judgment on 24 November 2004. The Defendant then noted an appeal to this Court against the dismissal of the application for the rescission of judgment. The papers for the appeal were filed of record on 27 June 2006.

[7] The notice of appeal was filed late. Accordingly there is no application for condonation of the late-filing of the record and the late prosecution of the appeal.

[8] The basis on which the default judgment was sought to be rescinded and on which this appeal is based are that:

a) the Defendant was not in wilful default;

b) the Defendant has a defence against the Plaintiff’s claim; and

c) the Defendant has a counterclaim against the Plaintiff.

I will consider the application for condonation first.

CONDONATION

[9] The Defendant has explained why the record of the proceedings was filed late and why the appeal was noted and prosecuted late. The explanation furnished for the lateness of the record, which also applies to the late prosecution of the appeal is that it took long to obtain the correct transcript of the record. The Defendant was not to blame for this delay at all. The transcribers only made the correct record ready on 04 May 2005. The Defendant’s attorneys took possession of it on that day.

[10] On 14 October 2005 the record and the brief were forwarded to counsel for an opinion on prospects of success on appeal. The opinion was received by the Defendant’s attorneys on 14 December 2005. Their offices closed the next day. It was, therefore, not until 12 January 2006 that the opinion was forwarded to the Defendant. The papers relating to the appeal were only filed of record on 27 June 2006.

[11] No explanation was given for the Defendant’s inaction between 04 May 2005 and 14 October 2006. The Court was also not told why no steps were taken to note and prosecute the appeal between 03 January 2006 when the firm of attorneys representing the Defendant opened their offices, and 26 June 2006, which is the day before the filing of the appeal papers. A delay of a period in excess of 10 months remains unexplained. No reason was given as to why no explanation was given. The failure to explain the delay alone is, obviously, not conclusive. The merits of the appeal must also be taken into account to determine whether or not the application for condonation should succeed. I do so below, beginning with whether or not the Defendant was in wilful default.

WAS THE DEFENDANT IN WILFUL DEFAULT?

[12] The first of the two requirements for the rescission of a default judgment is that the Defendant was not on wilful default. The reason given by the Defendant for his failure to plead to the summons is that he did not know that the matter was going to be enrolled. He said that he called the Plaintiff on 28 August 2004 and that they exchanged apologies. The Defendant then proposed that the matter be settled. Consequently, a settlement proposal was given to him on 02 September 2004. An amount of R30 000.00 was proposed by the Plaintiff and his attorneys for settlement. On 07 October 2004 he learnt that judgment had been granted against him. He immediately applied for the rescission of judgment. The question is whether or not the Defendant was in wilful default or whether he had a reasonable excuse for his being in default on the date of trial.

[13] The summons clearly stated that the Defendant must respond to them within five days of service, but he did not file his plea within that period. He does not say that the attorney said in the letter containing the settlement proposal that he may take as long as he wanted to, to consider the settlement proposal and that they said the case will not be proceeded with pending the finalisation of the disciplinary enquiry against him (the Defendant). Instead he says that it was the Plaintiff who said that they should not discuss the settlement proposal pending the finalisation of the disciplinary hearing against him (the Defendant). For this reason, so he says, he believed that the case would not be enrolled and proceeded with.

[14] The aforegoing allegations are denied by the Plaintiff and the probabilities favour the Plaintiff. If the matter were not intended to be proceeded with while the Defendant was facing a disciplinary enquiry, why then was the summons issued? Why did the Plaintiff’s attorneys present the Defendant with a settlement proposal within six days of his request that the matter to be settled? What logical reason could there be for the Plaintiff wanting to stall the case which was clearly instituted to clear his name as expeditiously as possible? The version of the Plaintiff is more probable than that of the Defendant. I am, therefore, satisfied that the Defendant was in wilful default. I turn now to consider the Defendant’s defence to the Plaintiff’s claim.

A BONA FIDE DEFENCE

[15] The other requirement for the rescission of a default judgment is that the party who applies for rescission must show that he/she has a bona fide defence to the Plaintiff’s claim. The Defendant has not stated any of the defences to defamation or any recognisable defence whatsoever. What he seeks to rely on as defences are that: (i) the Plaintiff video-taped the interrogation against the Defendant contrary to his undertaking not to do so; (ii) the doctor-patient privilege might have been compromised by the investigation; (iii) by allowing third parties to view the video recording the Plaintiff might have caused his own damages; (iv) the R100 000.00 awarded to the Plaintiff is excessive; and (v) the Defendant was also insulted and humiliated by the Plaintiff and has suffered damages in the amount of R100 000.00.

[16] As I said above, none of the legally recognised defences to a defamation, such as (i) privilege or privileged occasion; (ii) truth and public interest; (iii) fair comment; (iv) private defence; (v) rixa, provocation and compensatio; and (vi) consent, were raised. The Defendant chose to rely on what is set out in paragraph 15 above to show what answer he has to be Plaintiff’s claim. This approach, adopted in an attempt to have a default judgment rescinded, was addressed by Zulman JA in Leo Manufacturing CC v Robor Industrial (Pty) Ltd 2007 (2) SA 1 (SCA) at paragraph 4 as follows:

“[4] As previously stated, the appellant, at no time, set out ‘the grounds of its defence’ to the respondent’s claim as required by Rule 49(3). It was upon this basis that the magistrate and the Court a quo refused to rescind the default judgment. Reference was made to two cases, namely, Cooper & Ferreira v Magistrate for the District of Humansdorp and Another, and F & J Car Sales v Damane. In Cooper & Ferreira, it was held, with reference to Rule 49(2) (the predecessor to the present rule 49(3)), that it is clear that an application for rescission has to be supported by an affidavit setting out not only the reasons for the defendant’s absence or default but also the grounds of the defendant’s defence to the action or proceedings in which the judgment was given. In the F & J case, which dealt specifically with the present Rule 49(3), the Full Court came to exactly the same conclusion.”

[17] It is always imperative that the grounds of the Defendant’s defence to the claim be set out to enable the Court to determine whether or not the Defendant has a valid and bona fide defence to the Plaintiff’s claim. This is necessary even where the judgment is believed to be void ab origine. Zulman JA, in the Leo case above, addresses these issues in the following terms:

“[6] Put differently, the provisions of Rule 49(3) are peremptory when a court considers an application to rescind a default judgment. More particularly, the wording of the sub-rule makes it clear that the grounds of the defendant’s defence to the claim must be set out. Where the objection is that the judgment was void ab origine, compliance with Rule 49(3) nevertheless involves further proof of the existence of a valid and bona fide defence to the claim.

[7] . . . In their comment upon Rule 49(8), the learned authors Erasmus and Van Loggerenberg make the point that an application seeking rescission of a default judgment on the grounds that the judgment in question is void ab origine must (in terms of Rule 49(3)) set out a defence ‘with sufficient particularity’ so as to enable the court to decide whether or not there is a valid and bona fide defence.”

[18] It follows from the above that the Defendant need to but has not set out genuine grounds of his defence to the Plaintiff’s claim. It was for this reason that the Magistrate found it difficult to rescind the default judgment. The recording of the interrogations, the Plaintiff’s possible interference with the doctor-patient relationship, making the video tape available to third parties are by no stretch of imagination a defence to the Plaintiff’s claim. To the extent that it was submitted on behalf of the Defendant that the defamatory statements were not published and that the requirement of publication was therefore, missing, the evidence is that Mr Breedt was present when the Defendant made the defamatory statements. He did not learn about the defamation through the video tape. There was, therefore, publication.

[19] An attempt was made to turn the counterclaim, which the Defendant says he has against the Plaintiff, into a defence to the Plaintiff’s claim. Well, the grounds for that counterclaim were not set out in the affidavit the purpose of which was supposed to be to highlight the defence that the Defendant has. But for a bald statement that the Defendant was insulted and humiliated by the Plaintiff and that the damages due to the Defendant would effectively set off what was awarded to the Plaintiff, nothing more was said about the alleged counterclaim. The lack of particularity makes it impossible to determine whether or not the Defendant has a valid and bona fide defence to the Plaintiff’s claim, that is assuming that a counterclaim could ever be a defence to such a claim.

[20] It is evident from the authority cited above that even if the claim was void ab origine, for whatever reason, that would not on its own be the basis for rescinding the default judgment. The inescapable requirement for the rescission of judgment is that a valid and bona fide defence to the Plaintiff’s claim must be stated by the Defendant. That was not done and for this reason alone, the appeal must fail.

[21] In the result, the Defendant has not only failed to show that he was not in wilful default, but he has, more importantly, failed to disclose the bases for claiming that he has a valid and bona fide defence to the Plaintiff’s claim on the strength of which judgment may be rescinded.

[22] The following order is made:

a) The application for condonation of the late-filing of the record and prosecution of the appeal is refused; and

b) The appeal is dismissed with costs.

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M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

I agree

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K. MAKHAFOLA

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 11MAY 2007

DATE OF JUDGMENT : 15 JUNE 2007

COUNSEL FOR APPLICANT : ADV N. GUTTA

COUNSEL FOR RESPONDENTS : NO APPEARANCE

ATTORNEYS FOR APPLICANT : SMIT STANTON INC

ATTORNEYS FOR RESPONDENTS : VAN ROOYEN, TLHAPI, WESSELS

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