Sparks v David Polliack & Co (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 1963 (2) SA 491 (T)

Sparks v David Polliack & Co (Pty) Ltd
1963 (2) SA 491 (T)

1963 (2) SA p491

Citation	1963 (2) SA 491 (T)
Court	Transvaal Provincial Division
Judge	Bresler J and Trollip J
Heard	February 26, 1963
Judgment	March 15, 1963

Flynote : Sleutelwoorde

Appeal — Magistrate's court — Default judgment under Rule 55 (2) F of Act 32 of 1944 — When appealable — No application to rescind judgment — No waiver or peremption of right to apply for rescission — Judgment not final — Not appealable under sec. 83 (2) of Act.

Headnote : Kopnota

G A default judgment under Rule 55 (2) of the Magistrates' Courts Act Rules becomes final, and therefore appealable, when it is no longer rescindable.

Where a judgment had been given in default in terms of Rule 55 (2) of the Magistrates' Courts Act Rules and there was nothing in the record, on an appeal, to show that an extension of time within which to have the judgment rescinded had been refused under Rule 53 (5) or that there had been a waiver or peremption of the right to have the judgment rescinded.

H Held, as the judgment did not have the effect of a final judgment, that it was not appealable under section 83 (2) of the Magistrates' Courts Act, 32 of 1944.

Case Information

Appeal from a decision in a magistrate's court. At the hearing the respondent took an objection in limine the nature of which appears from the reasons for judgment.

W. G. Muller, for the appellant.

S. W. Sapire, for the respondent.

1963 (2) SA p492

Cur adv vult.

Postea (March 15th).

Judgment

A Trollip, J.:

I shall refer to the appellant and respondent as the defendant and plaintiff respectively. The plaintiff sued defendant in the magistrate's court for payment of £18 10s. and £193 8s. 6d. for goods sold and delivered. The defendant defended the action, and after receiving further particulars, he pleaded a denial of the allegations relating to the first claim, and, in regard to the second claim, he B admitted owing £83 18s. 3d. for which he consented to judgment, and he disputed the balance.

The trial was set down for hearing for the 29th May, 1962, but on that day it was postponed by consent to the 13th September, 1962, the C plaintiff being ordered to pay the wasted costs. On the 13th September, 1962, the defendant's attorney applied for a postponement, tendering to pay the wasted costs. This postponement was opposed by plaintiff's counsel. After hearing argument the magistrate refused the postponement. The defendant's attorney then withdrew from the case. Plaintiff's D counsel thereupon applied for judgment by default in terms of the Magistrates' Courts Rule 55 (2), which the magistrate granted in the amounts claimed with costs. The defendant asked for the magistrate's reasons for judgment in terms of Rule 47 (1), and these were furnished on the 27th September, 1962. The defendant then noted an appeal on the 12th October, 1962, from

(a)

the magistrate's order refusing the postponement; and

(b)

E the judgment in the plaintiff's favour.

It is clear that the order refusing the postponement is not per se appealable because it did not have 'the effect of a final judgment' within the meaning of sec. 83 (b) of the Magistrates' Courts Act. Mr. Muller, on behalf of the defendant, tried to contend that it was F appealable, but that contention is without substance because the order was a simple interlocutory one which did not

'directly bear upon or dispose of the issues in the action or irreparably anticipate or preclude any of the relief which might be given at the hearing'

(Pretoria Garrison Institutes v Danish Variety Products (Pty.) Ltd., 1948 (1) SA 839 (AD)).

G Mr. Sapire, who appeared for the plaintiff, took the preliminary point that the judgment for the amounts claimed granted in plaintiff's favour was not appealable. It was common cause that the judgment was granted under Rule 55 (2), and that it must therefore be regarded as a default judgment within the meaning of sec. 36 (a) (cf. Meer Leather Works Co. H v. African Sole & Leather Works (Pty.) Ltd., 1948 (1) SA 321 (T) at p. 325) and that it could therefore be rescinded under sec. 36, read with rule 46, by the magistrate's court that had granted it.

Mr. Sapire consequently argued, firstly, that it was not a judgment of the nature described in sec. 48, that is, one granted as a result of the trial of the action, and that it was not therefore appealable under sec. 83 (a), all of which Mr. Muller conceded; and, secondly, that it was not an order made in the suit or proceedings 'having the effect

1963 (2) SA p493

Trollip J

of a final judgment', and was therefore not appealable under sec. 83 (b), on which Mr. Muller joined issue, contending that it did have such effect.

The fact that a judgment was granted in favour of the plaintiff, on the A default of the defendant, for the amounts claimed does not necessarily mean that it cannot operate as a final judgment in order to sustain an appeal, or a plea of res judicata, or an action in another court (Spencer Bower on Res Judicata, para. 38; Beck on Pleadings, 2nd ed. p. 139). The problem that usually arises, as in the present case, is B whether it can be regarded as final in view of the fact that it is rescindable by the court that granted it. (I am, of course, dealing here with a judgment granted in the suit or on the action itself, and not with one granted on any procedural point arising out of, or in the course of, the suit or action). According to the authorities, the general rule is that, if in terms of the statute and practice of the C court granting such a judgment, that court can itself rescind it, then that judgment is not final and conclusive, but only provisional, until it is no longer rescindable through lapse of time or otherwise; but the relevant statute or practice might enact expressly, or by necessary implication, that despite the judgment's rescindability by the court granting it, it must nevertheless be regarded as final and binding D unless and until it is rescinded. In the latter case, while the judgment stands, it would have the effect of a final judgment.

I think that that is the effect of the passages in Spencer Bower's Res Judicata in paras. 142, 149, 150, 151 and 151 A, which are...