Halu v Thabo

• Jurisdiction: South Africa
• Judge: Revelas J, Rowan AJ
• Judgment Date: 23 November 2007
• Docket Number: A120/07
• Court: Transkei Division
• Hearing Date: 23 November 2007
• Citation: 2008 JDR 0494 (Tk)

Revelas J:

[1] This was an appeal against a decision of a magistrate in Tsolo, to dismiss the appellant's application for the rescission of a default judgment dated 29 October 2004. She was ordered to pay the amount of R100 000,00 as damages to the respondent, as well as costs, arising from an action for damages he had instituted against her for allegedly laying false charges of assault against him, in the criminal proceedings where he was acquitted. A garnishee order was also obtained, apparently without proper procedure, and deductions were made from the appellant's salary in terms of that order. The appellant also sought the setting aside of the garnishee proceedings.

[2] The magistrate dismissed the application for rescission on the basis that the matter was res iudicata, since a previous application brought on behalf of the

2008 JDR 0494 p3

Revelas J

appellant for the rescission of the same default judgment had been dismissed. That judgment (or "the first judgment") was not challenged in any appeal or review proceedings and consequently remains operative with the result that the default judgment, its subject-matter, is also still in full force and effect. And unfortunately, so is the garnishee order.

[3] It appears that the first judgment was based on an undue delay in bringing the application for rescission. At this juncture I must point out that the amount of damages awarded to the respondent appears to be excessive, given the nature of the claim, and the evidence relied upon to award it, very unsatisfactory.

[4] According to the appellant, her former attorneys of record were remiss in prosecuting her defence against the respondent's claim, and their negligence resulted in the default judgment of 29 November 2007 obtained against her.

[5] An attempt was made to persuade us that because the appellant was totally unaware of the first judgment which her erstwhile attorneys had launched without her...