CASE NUMBER:		10638/2006
In the matter between:
DANIEL JOSHUA LE ROUX	Applicant

And
ABSA BANK LIMITED	Respondent

JUDGMENT

This is an application for a rescission of the judgment granted by default against applicant in favour of respondent on 5 December 2006.

It is common cause that, in this particular case, the application for rescission of judgment requires the following requirements to be met before such an application can be successful:
1.	Applicant must give a reasonable explanation for default.
2.	

Ms Watson, who appeared on behalf of the applicant, referred with regard to the question of the explanation to the founding papers in which the following is stated.

The summons in this matter was served on my wife... on or about October 2006. When I received the aforesaid summons from my wife I immediately contacted the second defendant again who advised me that he had spoken to his attorney, Mr Marais, and was advised that the summons was defective and that the respondent had instituted similar proceedings was in the Witwatersrand Local Division under case number 10638/2006 and that the proceedings in the Cape High Court amounts to a duplication of proceedings...

In addition, they invited me to travel to Johannesburg in order to oppose the matter in that court. I was unfortunately not in the financial position to do so, but believed that given their reactions I would not be required to appoint my own attorney to oppose the matter as I was the fifth defendant and also included as a surety. I was also advised by the second defendant that as regards my suretyship the first defendant that its defence is also availed to me. I requested that the second defendant instruct his attorneys to act on my behalf which he undertook to do. Accordingly, 1 was left under the impression that any proceedings pertaining to the plaintiffs claim would be dealt with by second defendants attorneys and that I would be included in such defences.

The reason for my failure to defend the action instituted against me is accordingly that I at all times believed that the action having been opposed by the second defendant's attorneys that I would automatically included in their defence especially bearing in mind the advice that the same defence is availed to me at first. I was also under the mistaken belief that the attorneys acting for the second and third defendant would deal with any demands made against me and would do whatever was necessary to protect my interests as I had consulted with the second and third defendants and their attorneys in this regard prior to the plaintiff instituting proceedings and the second defendant undertook to instruct these attorneys to act on my behalf.
Unfortunately, the attorneys acting for the second and third defendants did not oppose the action on my behalf as I now understand that they had been instructed by the second and third defendants.

On or about 18 January 2007 the plaintiff caused the default judgment to be granted against me"

Mr Manca, who appeared on behalf of the respondent, characterised, in my view correctly, this explanation as somewhat weak. On this basis, he referred to the approach which the Appellate Division (and now the Supreme Court of
Appeal) have adopted with regard to these matters, ft is thus necessary to refer thereto.

"The appellant's predicament was not solely due to the attorney's negligence or ineptitude. According to the affidavits the appellants have not been in direct touch with Lebos at any stage of the proceedings. Coligionis was representing them, they left the conduct of the case in hrs hands entirely and although they were supposed to look after the interests, he also let them down... They appeared to have manifested a complete disinterest in the conduct of the case after the interim settlement... And they have not proferred any acceptable explanation for their failure to keep in touch with Coligionis or with Lebos for that matter as to the progress of the proceedings during the 3 and a half year period subsequent to the interim settlement"

Mr Manca submitted that, in this particular matter, the latter test certainly could not trump the manifest absence of adequate compliance with the first requirement for rescission.

However, on the papers, the high watermark of respondents riposte to applicant is the following paragraph in defendant's affidavit opposing summary judgment where respondent refers

to the following passage:
“

There is nothing on the papers which suggests that applicant may not have raised a good defence, to the effect that payment by respondent was not made to the principal debtor. To the extent that there was a dispute in court, the answer must be that respondent as the lending bank should, at least, know whether any legal authority was granted to it by the principal debtor to pay the debt to a third party, being Evening Star. That, of course, is not for this court to determine: it is a matter which will be decided at a trial.

In this case, were the application for rescission not to be granted and were a trial to succeed for the other sureties, the applicant would be placed in a most unfair situation of being liable for an amount which, in law, he was not liable to pay.

For these reasons, the application must be granted. There is one further issue: the question of costs. The only dispute was whether costs can stand over for the trial or whether they should be born by applicant. In my view, applicant was dilitory in the extreme and the only basis by which the order has been granted is because of a prospect of success on the merits coupled with the principle that I have added, namely that a refusal would offend the interests of justice. Respondent was entitled, on the existing law, to oppose this application and, in my view, applicant has been granted a considerable indulgence.

For these reasons, an order is made that the judgment granted against the applicant on 5 December 2006 is rescinded. Applicant is granted leave to defend the action. Applicant is to pay the costs of the respondent in opposing this application.