De Wet and Others v Western Bank Ltd

• Jurisdiction: South Africa
• Judge: Wessels JA, Rabie JA, Muller JA, Corbett JA and Trengove AJA
• Judgment Date: 13 March 1979
• Hearing Date: 17 November 1978
• Court: Appellate Division

Trengove AJA:

This appeal concerns an application by the appellants for the rescission of certain judgments obtained against them by the respondent in default of their appearance, as plaintiffs, at a civil trial in the Witwatersrand Local Division on 16 August 1976. The application came before HIEMSTRA AJP who dismissed it. The appellants thereupon appealed to the Full Court of the Transvaal Provincial Division. The first G appellant, now the respondent in the cross-appeal, was successful but the appeals of the other appellants were dismissed. By leave of the Full Court, they have now appealed to this Court against the dismissal of their appeals, and the respondent has, in turn, cross-appealed against the upholding of the appeal of the erstwhile first appellant. For convenience H I shall refer to the latter as the first appellants, respectively.

The facts and circumstances which gave rise to the application for rescission are set out in detail in the judgment of the Full Court, (MELAMET J, with BOSHOFF AJP and CURLEWIS J concurring) reported under De Wet and Others v Western Bank Ltd 1977 (4) SA 770 (T). For present purposes the following summary will suffice:

Trengove AJA

(a)

The application has its origin in an action which one Coligionis A and the five appellants, as plaintiffs, instituted against the respondent, as defendant, as far back as March 1971. In this action, the plaintiffs sued for an order declaring that certain written agreements of lease relating to Nissan tipper trucks, which each of them had entered into with the defendant, had terminated as a result of the latter's unlawful repudiation B thereof; they also claimed repayment of certain monies which had been paid to the defendant under a further agreement between the parties. The defendant disputed these claims and counterclaimed against each of the plaintiffs, alleging that they had failed to pay the amounts due under their respective leases and had C consequently become liable to pay various amounts of money to the defendant, payment of which it claimed. The defendant further alleged that the plaintiffs had bound themselves as sureties for the obligations of each other under the agreements of lease, and were therefore liable to the defendant, jointly and severally, for payment of the amounts in question.

(b)

D The case first came to trial before COLMAN J on 19 February 1973. At that stage attorney B Lebos of Johannesburg was acting for the plaintiffs. Before any evidence had been led, the parties arrived at what has been referred to as an "interim settlement", in terms of which the matter was then postponed sine die.

(c)

E On 1 February 1974 the estate of Coligionis was sequestrated and the name of the trustee was later substituted for that of Coligionis as the first plaintiff in the abovementioned action. The trustee subsequently arrived at a settlement with the respondent (as defendant), in terms of which the first plaintiff's claim was then withdrawn.

(d)

F During March 1976 the respondent, acting in terms of the interim settlement, duly reinstated the case on the roll for hearing on Monday 16 August 1976. A week before the hearing, on 9 August 1976, Lebos withdrew from the case as attorney for the second to the sixth plaintiffs (ie the appellants). He lodged a notice of withdrawal with the Registrar of the Court, after service on the attorneys acting for the defendant (the respondent) and the attorneys for the first plaintiff. He did not communicate directly with the appellants as he did not have their addresses, but he wrote to Coligionis instead and requested him to inform the appellants of his decision and to advise them "to make suitable arrangements immediately regarding their action".

(e)

H On 16 August 1976 the case came before VAN REENEN J. When the matter was called none of the plaintiffs (now appellants) was present in Court. Counsel, who had not previously been engaged in the case, appeared and informed the Court that he had just been briefed and instructed to apply for a postponement on behalf of the third plaintiff (the second appellant). There being no appearance on behalf of the other plaintiffs (ie the first, third, fourth and fifth appellants respectively), counsel for the defendant (the respondent) then moved that their claims against the defendant be

Trengove AJA

dismissed with costs. As regards the counterclaims, defendant's counsel informed the Court that at the previous hearing, before A COLMAN J on 19 February 1973, the defendant's counterclaim had been admitted in the sum of R56 500 together with interest thereon at one per cent per month from 1 March 1973 and he moved for judgment against each of the plaintiffs in these terms. VAN REENEN J thereupon dismissed the claims of the second, fourth, fifth and sixth plaintiffs with costs, and entered judgment against them, on B the counterclaim, jointly and severally, for the sum of R56 500 with interest thereon at one per cent per month from 1 March 1973 to date of payment, and costs, on the attorney and client scale, in terms of the provisions of the lease agreements.

(f)

The case of the third plaintiff (the second appellant), for whom C counsel said he was appearing, stood down until the afternoon. When the hearing was resumed it transpired that the counsel concerned had made a mistake in stating that he had been briefed on behalf of the third plaintiff, and that he should actually have appeared on behalf of the second plaintiff (the first appellant) against whom judgment had already been granted. This mistake was D due entirely to an unfortunate misunderstanding between the counsel concerned and his instructing attorney. As a result there was, in fact, no appearance on behalf of the third plaintiff (second appellant) and counsel for the defendant accordingly moved E for, and obtained, the same orders against him as had already been granted against the other plaintiffs. Counsel representing the second plaintiff (first appellant) thereupon moved to have the judgments and orders granted against his client, earlier in the day, set aside but this was opposed on behalf of the defendant. VAN REENEN J was of the opinion, however, that a formal application for rescission was required, and he therefore refused to grant the relief sought.

Broadly speaking these are the circumstances giving rise to the application for rescission which was dismissed by HIEMSTRA AJP in the Court of first instance, and was then taken on appeal to the Court a quo.

In the Court of first instance, HIEMSTRA AJP came to the conclusion that G the facts and circumstances on which the five appellants relied in support of their applications did not justify his rescinding the judgments, which had been entered against them in their absence, either under the provisions of Rule 42 (1) (a) of the Uniform Rules of Court, or under the common law. On appeal, this view was endorsed, in substance, by H the Full Court as far as the second, third, fourth and fifth appellants were concerned; the Full Court was of the view, however, that the case of the first appellant stood on a somewhat different footing, and it accordingly upheld his appeal, hence the cross-appeal by the respondent. The question which now requires the decision of this Court is simply whether of not the Court of first instance should have set aside the judgments and orders granted against the appellants at the resumed hearing before VAN REENEN J on 16 August 1976.

I shall first deal with the appeals, and then with the cross-appeal. The judgments in question are default judgments, pure and simple (cf Katritsis

Trengove AJA

v De Macedo 1966 (1) SA 613 (A) at 618B - F). In the Supreme Court an A application for the rescission of a default judgment can be based on the provisions of Rule 31 (2) (b) or Rule 42 (1), or on common law principles, depending on the circumstances of the particular case. It is common cause that in the present instance the appellants cannot rely on the provisions of Rule 31 (2) (b). Counsel for the appellants presented his argument under two main heads. Firstly he contended that the Court of first instance should have rescinded the judgments and orders in question B under the provisions of Rule 42 (1) (a) as being judgments and orders "erroneously sought and erroneously granted" against the appellants, in their absence. A number of arguments were advanced in support of this proposition. Counsel for the appellants referred, in the first instance, C to the fact that, in withdrawing as attorney for the appellants, Lebos had failed to comply with the provisions of Rule 16 (4) in at least two respects. This is common cause. The formal notification to the Registrar did not specify the date when, the parties to whom, and the manner in which notification was sent to all parties concerned, and it was not accompanied by a copy of last-mentioned notification. It was, accordingly, contended that the proceedings before VAN REENEN J were irregular and that D the judgments against the appellants had been erroneously sought and granted. In my view there is no substance whatever in this contention. The appellants cannot avail themselves of the...