Liberty Group Limited v Bezuidenhout

• Jurisdiction: South Africa
• Judge: Mbatha J
• Judgment Date: 04 March 2014
• Docket Number: 4072/2010
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 05 August 2013
• Citation: 2014 JDR 0572 (KZP)

Mbatha J:

[1]

Defendant raised a Special Plea of res judicata in his defence and subsequently obtained an order that the Special Plea be adjudicated upon separately in terms of Rule 33 (4) of the Rules of this Court.

[2]

The issue that require determination in the Special Plea being:

(a)

Whether the judgment entered in favour of the Plaintiff, by default, and subsequently abandoned by the Plaintiff renders the action res judicata; and

2014 JDR 0572 p2

Mbatha J

(b)

Whether the Plaintiff is entitled to proceed with the action on the same papers in respect of which it obtained default judgment against the Defendant, after the default judgment had been abandoned by the Plaintiff.

[3]

It is common cause that the Defendant bears the onus of proof and it is also common cause that there are no material disputes of facts.

[4]

The summary of the facts in this matter are as follows:

4.1

The Plaintiff issued summons from this Court on the 2nd of June 2010. The cause of action arises from a termination of an agency agreement between the Plaintiff and the Defendant. The Plaintiff's claim is for the recovery of the funds due to the Plaintiff in terms of their agreement.

4.2

Judgment by default was entered in favour of the Plaintiff on the 11th of October 2010 in the amount of R65 501, 21, together with a tempora morae interest and costs.

4.3

The Plaintiff subsequently abandoned the judgment in terms of "common law" and a notice to this effect was filed.

4.4

On the 14th of December 2011, the Defendant served its Notice of Amendment, and substituted its claim for R65 501, 21 for an amount of R126 131, 05.

2014 JDR 0572 p3

Mbatha J

[5]

In the light of the aforementioned developments, the defendant raised a special plea of res judicata in that:

(a)

It is a claim for the same thing on the same ground against the same parties;

(b)

which has been fully adjudicated by the Honourable Court;

(c)

the Defendant pleads that this claim was fully adjudicated upon on the 11th of October 2010, when the Plaintiff obtained the Default Judgment;

(d)

It is therefore a final judgment as it finally disposed of the matter between the parties;

(e)

Further, the Plaintiff is not entitled to proceed with the action as the previous judgment disposed of the action and the matter is therefore res judicata.

[6]

The requirements for a Plea of res judicata are as follows:

(a)

Judgment must have been entered in an action or application by a competent Court;

(i)

Between the same parties;

(ii)

based on the same cause of action;

(iii)

with respect to the same subject matter or thing and it makes no difference, in this type of Plea, that no evidence was led prior to the judgment being granted. The Court was referred to Jacobson v Havinga t/a Havingas [1] in this regard.

2014 JDR 0572 p4

Mbatha J

[7]

The question is whether a matter has been finally adjudicated upon by the granting of a default judgment and what are the implications are for abandoning such a judgment under common law by the Plaintiff.

[8]

The Defendant has referred me to Jacobson v Havinga t/a Havingas [2] where the Court held that a default judgment is binding until it is rescinded and a plea of res judicata may be raised successfully. The Court held that it is irrelevant whether evidence was led or not, a default judgment remains a judgment even if erroneously obtained irrespective whether it was granted by the Clerk of the Court, a Magistrate or Judge. I refer to Ramodike v Mookeetsi Trading Store [3] where the following was said:

"Until properly attacked and rescinded a judgment of a Court of record, even if obtained by default, must stand and presumed to be binding."

8.2

The facts of that case were slightly different from the facts of this case in that default judgment had been erroneously obtained after the withdrawal of the matter and a new summons had been issued.

In this case a valid judgment is abandoned, no new fresh summons have been issued, but an amendment is effected only in so far as the claim amount is concerned.

2014 JDR 0572 p5

Mbatha J

8.3

The same principle was applied by Steyn CJ in African Farms Township LTD v Cape Town Municipality [4] where he had this to say:

"even if the judgment is wrong, a person can rely on res judicata."

8.4

It was more or less a similar scenario in Shackleton Credit Management (PTY) LTD v Grobler and Another [5] . A judgment was erroneously sought in the name of the cedent instead of Shackleton Credit Management, the cessionary. The Court held that the judgment erroneously obtained by Nedcor ought to have been rescinded, even if it is a default judgment, and until rescinded it was binding and competent to sustain a Plea of res judicata. It supported the principles set out in Havinga above.

[9]

The Plaintiff further submits that the granting of a default judgment is an administrative action arising from the default of the Defendant. However, I hold a different view. I accept that the default judgment granted by the Registrar was and is a final judgment, irrespective that it was granted by...