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IN THE HIGH COURT OF SOUTH AFRICA

NORTHWEST DIVISION, MAHIKENG

 

CASE NO: CIV/APP/MG10/22

Reportable:   NO

Circulate to Judges:                                   NO

Circulate to Magistrates:                     YES

Circulate to Regional Magistrates:               NO

 

In the matter between:-

 

THAMSAQA SAMUEL GOXO                                          Appellant

 

and

 

MINISTER OF SOUTH AFRICAN POLICE                    Respondent

SERVICES

Coram:                     REID J et MFENYANA J

 

Summary:    Civil law and procedure – appeal against granting of default judgment in respect of – unliquidated claim – no evidence tendered – Rule 12 (4) and 12(7) of the Magistrate’s Court Rules – court a quo erred– condonation for late filing of appeal.

This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 03 October 2023.

 

ORDER

 

On appeal from: District Court, Atamelang, North West Province.

 

(i)        Condonation for the late filing of the appeal is granted.

 

(ii)      The appeal is upheld.

 

JUDGMENT

 

MFENYANA J

 

[1]        This is an appeal against the judgment of the magistrate’s court in Atamelang, North West Province (court a quo). The appeal lies against the whole of the judgment and order of the court a quo. The appellant also seeks condonation for the late filing of the appeal. The appeal is unopposed.

 

[2]        On 9 June 2021, the court a quo granted default judgment in favour of the appellant following a request for default judgment by the same appellant, as plaintiff in the principal case. On 25 June 2021, upon learning of the default judgment, the appellant filed a notice of withdrawal of the request for default judgment. The appellant provided no reasons for the withdrawal.

 

[3]        The notice of appeal was filed over 10 months later on 29 April 2022.  The explanation for the late filing of the appeal is proffered by the appellant’s attorney, on behalf of the appellant. It is essentially that the appellant had no financial means to note an appeal within the stipulated timeframes, following receipt of the reasons, and sought to set aside the judgment of the court a quo and sought to appeal the judgment after the application for rescission had been struck off. The appellant avers that the appeal enjoys good prospects of success on the basis that the court a quo erred in awarding damages on an unliquidated claim, without considering any evidence on the cause of action and quantum. He further avers that there is no prejudice to the respondent, as it will be afforded an opportunity to defend the action once the default judgment is set aside. The appellant has deposed to a confirmatory affidavit.

 

[4]        What is apparent from the papers filed is that the appellant embarked on a lengthy process following the granting of the default judgment. It is necessary to set out the process followed by the appellant as it has a bearing on the present appeal.

 

4.1       Having learnt of the judgment on 25 June 2021, the attorney filed a notice for the withdrawal of the request for default judgment. On 7 July 2021 the clerk of the court, by direction of the presiding magistrate advised the appellant to follow the court process, and apply for rescission of the default judgment.

 

4.2       Notwithstanding the advice from the magistrate, the appellant on 30 July 2021 filed a request for reasons for the default judgment “in terms of Rule 51 of the Rules of the Magistrate’s Court”. The reasons were provided to the appellant on 25 August 2021. On 17 September 2021 the appellant filed an application for rescission of the default judgment which was to be heard on 30 September 2021. Owing to a defect in the affidavit filed in support of the rescission, the rescission application was postponed to 21 October 2021. It was further postponed to 20 January 2022 at the instance of the appellant, occasioned by personal reasons on the part of his legal representative.  On 20 January 2022, the matter came before a different magistrate, and was struck off the roll on the basis that the appellant had already sought and received reasons for the judgment.

 

[5]        This appeal follows upon the striking of the application for rescission by the magistrate, on 20 January 2022.  The application for condonation is intricately linked to the process followed in bringing the present appeal.

 

[6]        In his written submissions, the appellant states that he was not successful in withdrawing the request for default judgment as it had already been granted. As regards condonation, the appellant states that no prejudice would be suffered by the respondent as neither the appeal nor the application for condonation is opposed. Thus, he avers that it would be in the interests of justice that condonation be granted.

 

[7]        I agree with the appellant. The interests of justice play a vital role in determining whether or not condonation should be granted.  A party who seeks condonation, seeks indulgence from the court, must show sufficient cause as well as set out clearly the reasons for the delay. The ultimate test is whether it is in the interests of justice to grant condonation. In  Brummer v Gorfil Brothers Investments (Pty) Ltd [2000] ZACC 3; 2000 (2) SA 837 (CC) the Constitutional Court held that condonation should be granted if it is in the interests of justice, and refused if it is not.  While the appellant opted for a convoluted approach prior to bringing the application, which accounted for part of the delay, it cannot be gainsaid that a material misdirection occurred in the proceedings before the court a quo. That notwithstanding, I am firmly of the view that the interests of justice dictate that the late filing of the appeal be condoned.

 

[8]        With regard to the merits, the appellant contends that the court a quo erred in granting default judgment, and awarding damages without being presented with any evidence, and ought not to have “granted default judgment in chambers without any address from the Appellant’s legal representative”, and should have directed the appellant to tender evidence. In the alternative, the appellant contends that the court a quo should have granted judgment on the merits only and directed the appellant to tender evidence on quantum.

 

[9]        The appellant further contends that as the Magistrate’s Court is a creature of statute, it was not open to it to act outside the empowering legislation. The appellant further places reliance on Rule 12 of the Magistrate’s Court Rules which enjoins the plaintiff in a request for default judgment for an unliquidated amount, to furnish evidence either orally or on affidavit on the nature and extent of the claim.

 

[10]      During the hearing of the matter, it was contended on behalf of the appellant that the court a quo misunderstood what constitutes evidence, and considered the contents of the pleadings to be evidence when this is not the case. Thus, the court a quo committed a material error in law and misconstrued the facta probanda vis a vis the facta probantia and relied on the facta probanda as evidence. He submitted that while the court a quo was correct in finding that there was no evidence before it, it however (incorrectly) proceeded to grant default judgment and awarded damages.

 

[11]      The appellant placed reliance on various judgments. Notably, the SCA in Economic Freedom Fighters and Others v Manuel 2021 (3) SA 425 (SCA), the SCA at paragraph 99 affirmed that:

 

“Even in undefended cases, in which unliquidated damages are claimed, the position dictated by the applicable rules of court, has always been that oral evidence is required before an award can be made…”

 

[12]      The SCA went further to reiterate that in such circumstances the courts have insisted on hearing viva voce evidence, in order to make a proper assessment and issue an appropriate award. 

 

[13]      The appellant further relied in this regard, on the judgment in Dorfling v Coetzee 1979(2) SA 632 (NC) where the court remarked that “….where the cause of action is delictual, damages can in most cases only be determined after evidence has been led also in relation to the cause of action….”.

 

[14]      I align myself with these decisions. There was no evidence upon which the court a quo would grant default judgment.  Without viva voce evidence or a damages affidavit, in keeping with the dictates of Rule 12, the magistrate ought to have refused the default judgment.

 

[15]      I do not think that the elaborate and somewhat flawed approach followed by the appellant in challenging the decision of the court a quo before bringing the appeal has any bearing on the default judgment.  It remains extant.  That process, in any event, talks to the delay in bringing the appeal, and not the merits of the appeal. I have already found that it is in the interests of justice that condonation be granted.  The appeal itself is not a model of clarity.

 

[16]      In the result, I make the following order:

 

(i)          Condonation for the late filing of the appeal is granted.

 

(ii)        The appeal is upheld.

 

 

S MFENYANA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTHWEST DIVISION, MAHIKENG

 

 

I agree and it is so ordered.

 

 

FMM REID

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTHWEST DIVISION, MAHIKENG

 

 

 

APPEARANCES:

On behalf of the appellant:	Adv. O.C Legae
Instructed by:	Tshabalala OJ Attorneys
On behalf of the respondent:	No appearance
Reserved:	17 February 2023
Handed down:	03 October 2023

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