Mdanjelwa v Socio Economic Rights Institute of South Africa
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Hofmeyr AJ |
| Judgment Date | 03 August 2023 |
| Citation | 2023 JDR 2955 (WCC) |
| Hearing Date | 28 July 2023 |
| Docket Number | A 252/2022 |
| Court | Western Cape Division, Cape Town |
Hofmeyr AJ:
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Hofmeyr AJ
This is an appeal from the Magistrates’ Court against the dismissal of the appellant’s rescission application.
The appellant is a practicing attorney.
The respondent is the Socio Economic Rights Institute of South Africa (“SERI”).
The appellant brought an application for rescission in the Magistrates’ Court after default judgment was granted against her for the payment of R126,000 to SERI.
Default judgment was awarded to SERI in respect of a claim that it instituted in 2018 against the appellant and her erstwhile firm of attorneys, Mate Attorneys Incorporated.
The claim that SERI brought against the appellant, in respect of which it secured default judgment, was a claim based in the law of contract.
According to SERI’s particulars of claim, it had entered into a verbal contract with Mate Attorneys in terms of which SERI would advance monies to Mate Attorneys. Mate Attorneys would then use the monies to secure the release on bail of a number of students who had been involved in the Fees Must Fall protests. The contract required Mate Attorneys to keep the monies, use them to bail out SERI’s clients and then, as soon as the criminal matters had been finalised, to collect the bail money from the clerk of the court and immediately pay them back to SERI.
SERI further alleged that on 24 November 2015, it advanced R126,000 to Mate Attorneys in accordance with their contract. It then alleged that by September 2016, the
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criminal matters had all been finalised so repayment of the amount of R126,000 became due and owing to SERI.
SERI then claimed that, despite the fact that the monies were now due and owing for repayment, Mate Attorneys, alternatively the appellant, alternatively both of them, failed to repay SERI.
SERI alleged that this was either a material breach of the contract or a repudiation of it and, as a result, it cancelled the contract and claimed R126,000 in damages from Mate Attorneys and the appellant.
SERI’s pleaded case for recovery of its R126,000 was therefore based on a verbal contract that, it claimed, was entered into with Mate Attorneys. Significantly, the particulars of claim did not allege that there was a contract between SERI and the appellant. In SERI’s own pleadings, the appellant’s role was limited to representing Mate Attorneys, receiving the monies on behalf of Mate Attorneys and, together with Mate Attorneys, breaching the contract. But the contract, as pleaded, was one between SERI and Mate Attorneys.
The appellant failed to file a plea and was placed under bar in early December 2018. Later in December 2018, the Magistrate raised a query in relation to SERI’s claim. The Magistrate asked on what basis SERI claimed that the appellant was personally liable to it. Seven months later, in July 2019, the Magistrate raised another query. The query referred to a response that had been received from SERI in which SERI appeared to contend that the claim against the appellant was a delictual one. The Magistrate pointed
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out, however, that the claim, as pleaded in SERI’s particulars of claim, was based on a contract with Mate Attorneys and not on any delictual cause of action.
In October 2019, SERI gave notice that it intended to amend its claim to remove references to Mate Attorneys in its particulars of claim and to make further changes to the pleadings to base its claim on a contract which, it now intended to plead, was entered into between SERI and the appellant herself. This amendment, if it had been effected, would have provided the legal basis for a claim against the appellant personally – the claim would now be based on the allegation that the contract had, in fact, been entered into between SERI and the appellant, herself.
However, the amendment was never effected. So, when SERI sought default judgment against the appellant, it did so on the basis of the unamended pleadings. Those pleadings alleged a contract between SERI and Mate Attorneys and not a contract with the appellant herself.
It is against the backdrop of these facts of how the litigation between the parties unfolded that the appellant’s rescission application is to be viewed.
The question before this court on appeal is whether the rescission application was correctly dismissed.
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Hofmeyr AJ
Rescissions
A party seeking to rescind a judgment taken in default must generally satisfy two requirements: the applicant must provide a reasonable and acceptable explanation for the default and show that it has a bona fide defence on the merits that carries some prospects of success. [1]
The appellant’s application for rescission is not a model of clarity. She does, however, deal both with the reason for her default and a bona fide defence to the claim.
Explanation for default
In so far as the explanation of the appellant’s default is concerned, the gist of her explanation appears to be based on the fact that she had taken the view, when she received SERI’s notice of intention to amend its particulars of claim, that the bar on pleading had been lifted and she would only be required to plead to the claim once SERI had effected its amendment. Because that amendment was not forthcoming, she did not take steps to plead to the claim.
The appellant’s explanation of her conduct since receiving notice of the default judgment application is less clear but seems to have been substantially informed by the view that she took regarding the notice of intention to amend and its consequences for her next steps in the case. The appellant explains that when the default judgment...
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