Phillips t/a Southern Cross Optical v SA Vision Care (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 2000 (2) SA 1007 (C)

Phillips t/a Southern Cross Optical v SA Vision Care (Pty) Ltd
2000 (2) SA 1007 (C)

2000 (2) SA p1007

Citation	2000 (2) SA 1007 (C)
Case No	A 12/99
Court	Cape Provincial Division
Judge	van Reenen J
Heard	November 5, 1999
Judgment	December 1, 1999
Counsel	K H Warner for the appellant.; M C Seale for the respondent.

Flynote : Sleutelwoorde F

Magistrate's court — Civil proceedings — Practice — Judgments and orders — Rescission of — Rule 49(1) of Magistrates' Courts Rules — 'Good reason' in Rule 49(1) as amended in 1997 — Introduction of concept of 'good reason' in Rule 49(1) intended to expand discretion of magistrates' courts in rescission applications by introduction of less stringent criterion — Comparison of Rule 49(3) with Rule 49(4) showing G that under Rule 49(3) absence of wilful default no longer a requirement for rescission.

Headnote : Kopnota

The phrase 'if it is satisfied that there is good reason to do so' was introduced by the 1997 amendment of Rule 49(1) of the Magistrates' Courts Rules in order to provide for the rescission or H variation of a magistrate's court judgment upon the application of any person affected by such judgment. The introduction of the concept of 'good reason' in Rule 49(1) was intended to expand the discretion of magistrates' courts as regards the rescission of default judgments by the introduction of a less stringent criterion. (At 1012J - 1013A and 1013E/F - F/G.) I

A conclusion that can be safely drawn from a comparison of Rule 49(3) and Rule 49(4) is that, unlike in the case of Rule 49(4), an absence of wilful default is no longer a requirement if Rule 49(3) finds application. (At 1013H.)

2000 (2) SA p1008

Cases Considered

Annotations:

Reported cases

Building Improvements Finance Co (Pty) Ltd v Additional Magistrate, Johannesburg, and Another 1978 (4) SA 790 (T): distinguished

Cabral v Bank van die Oranje-Vrystaat Bpk 1986 (4) SA 768 (T): dictum at 774E applied

De Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd 1994 (4) SA 705 (E): dictum at 711E approved and B applied

Evander Caterers (Pty) Ltd v Potgieter 1970 (3) SA 312 (T): dictum at 316G - H applied

Galp v Tansley NO and Another 1966 (4) SA 555 (C): considered

Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O): considered

HDS Construction (Pty) Ltd v Wait 1979 (2) SA 298 (E): considered

Kritzinger v Northern Natal Implement Co Ltd 1973 (4) SA 542 (N): considered C

Kruger v Standard Krediet Korporasie Bpk 1988 (1) SA 570 (T): referred to

Mercedes Benz v Mdyogolo 1997 (2) SA 748 (E): considered

Mnandi Property Development CC v Beimore Development CC 1999 (4) SA 462 (W): dictum at 466A - B approved and applied D

Pier Street Mosque Trustees v Abrahams 1922 EDL 330: compared

S v Weinberg 1979 (3) SA 89 (A): dictum at 98F - G applied

Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A): referred to

Venter v Standard Bank of South Africa [1999] 3 B All SA 278 (W): referred to

Vleissentraal v Dittmar 1980 (1) SA 918 (O): compared. E

Rules Considered

Rules of Court

The Magistrates' Courts Rules, Rule 49(1), (3), (4): see Barrow The Supreme Court Act 59 of 1959 and the Magistrates' Courts Act 32 of 1994 12th ed (1999) Part B at 122-3. F

Case Information

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.

K H Warner for the appellant.

M C Seale for the respondent.

Cur adv vult. G

Postea (December 1).

Judgment

Van Reenen J:

The respondent sued the appellant for the payment of an amount of R20 240,36 in respect of goods sold and delivered at the latter's instance, order and/or request in and during February 1991 to June 1992.

The appellant entered an appearance to defend. That elicited an application for summary judgment which was opposed. The application for I summary judgment was refused.

The respondent then filed a declaration in which it amplified its cause of action by relying also on an admission of liability and an agreement to pay the amount claimed plus interest thereon by way of nine postdated cheques that were dishonoured when presented for payment. J

2000 (2) SA p1009

Van Reenen J

After the appellant had taken an exception and the respondent had A amended its declaration the appellant filed a plea.

The appellant in his plea denied that the respondent had sold and delivered goods in an amount of R20 240,36 to him; averred that he furnished the said cheques pursuant to an express agreement that they would not be presented for payment but kept as 'security' pending B resolution of a dispute relating to certain goods allegedly supplied by the respondent to the appellant; and that payment of the said cheques was stopped when it appeared that the respondent, contrary to the said agreement, intended presenting them for payment.

The appellant during or about March 1995 amended para 3 of his plea C by averring that he did not have any knowledge of the allegation that the respondent during February 1991 to June 1992 had sold and delivered goods of R20 240,36 to him and in amplification thereof averred that

(a)

the respondent sold certain goods to him from time to time, including the period February 1991 to 1992; and

(b)

inasmuch as respondent has not specified the goods allegedly sold and delivered and how the amount of R20 240,36 D was arrived at

the appellant was not in a position to either admit or deny that the goods referred to by the respondent had in fact been sold and delivered to him.

A number of procedural skirmishes relating to compliance with requests for trial particulars and discovery followed. E

The appellant's then attorneys of record withdrew as attorneys of record and notified him thereof by registered post on 12 October 1995.

By agreement between the parties, Foxcroft J, on 13 February 1996, transferred the action to the magistrate's court for the district of Wynberg and directed that the pleadings in this Court were to stand as the pleadings in that court. F

The pleadings were received by and allocated a case number by the clerk of the court on 22 February 1996. The appellant was not notified of the case number but his erstwhile attorneys of record, who had by then already withdrawn, were.

The respondent's attorneys set the matter down for hearing on 18 July 1996 and forwarded a copy of the notice of set-down to the G appellant by registered post to care of Southern Cross Optical, corner of 4th Avenue and Buck Road, Lotus River.

The appellant failed to appear at the time appointed for the commencement of the trial and the magistrate on 18 July 1996, in terms of Rule 32(2), granted judgment in default of appearance against H the appellant.

The respondent, on 8 April 1998, sought and was granted an order declaring the appellant's immovable property, namely erf 10083, Grassy Park (57 Kudu Avenue, Lotus River) and erf 69116 (112 Sussex Road, I Wynberg), executable. The former property is occupied by elderly tenants and the latter is the appellant's residence.

Notice of the aforementioned application was given by means of registered post addressed to the appellant at the abovementioned properties as well as to his business address, namely corner of 4th Avenue and Buck Road, Lotus Medicentre, Lotus River. J

2000 (2) SA p1010

Van Reenen J

The respondent on 10 June 1998 took out a warrant of execution against property. It was executed against the property known A as 57 Kudu Avenue during the week of 20 June 1998 and the tenants, Mr and Mrs Everts, notified the appellant thereof.

The appellant avers that that was the first time that he became aware of the fact that judgment had been granted against him.

The appellant then instructed his attorneys to launch an application B for the rescission of the said judgment.

The appellant's attorneys, on 12 August 1998, duly launched an application in which he sought (a) condonation of his non-compliance with the Rules relating to time-limits; (b) an order setting aside the default judgment and ancillary relief C granted on 18 July 1996; and (c) an order directing the respondent to pay the costs in the event of the application being opposed.

The additional magistrate of Wynberg dismissed the...