Civil PROC 4 Resubmission POE PDF

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`` SHAUKATH C MALANI 15001533 TASK 4 CIPR - RESUBMISSION 4.1.1

At the close of a trial, a court makes a decision which is based on the law and the evidence presented to which is called a Judgment1. A judgment of the court may be distinguished from an order of the court2. A judgment is the decision of the court in response to the relief claimed in an action3. An order is the decision of the court in response to the relief claimed in an application or by some other procedure, such as an interlocutory hearing in the course of trial 4.

4.1.2

A judgment has two functional components: 1. It is a command to the party at which it is aimed, coupled in an appropriate case with a warrant to the sheriff to enforce the commands5; 2. It regulates the legal relationship between the necessary parties and settles their mutual rights and obligations, to the extent necessary for its grant6.

4.1.3.1 There is no provision in the High Court Rules or the Superior Courts Act7 directly relating to judgment following upon trial. The authority of the High Court to grant judgments appears to derive from common law8. Judgment in the Magistrates’ Courts is provided for in terms of s 48 of the Magistrates’ Court Act910. 4.1.3.2 The defendant is entitled to apply to the court for absolution from the instance at the close of the plaintiff’s case11. This implies that the action is therefore dismissed but the judgment is not entered for either the plaintiff or the defendant. If the plaintiff thereafter still wishes to pursue the matter once absolution from the instance has been granted, he must institute a fresh action against the defendant12. The procedure which is used is that the defendant addresses the court; plaintiff answers; and the defendant replies13. The court will only grant absolution from the instance if the plaintiff has not managed to produce sufficient evidence upon which a reasonable person might find in favour of the plaintiff14. In making the decision the court normally will not 1 S Pete, D Hulme, Du Plessis, R Palmer, O Sibanda, S and T Palmer. Civil Procedure – A Practical Guide (2018) Oxford University Press: Cape Town. (Hereinafter referred to as Pete et al.) 307 2 Pete et al 307 3 Pete et al 307 4 Pete et al 307 5 Pete et al 307 6 Pete et al 307 7 Superior Courts Act 10 of 2013 8 Pete et al 307 9 s48 Magistrates' Courts Act, 1944 10 Pete et al 307 11 Pete et al 307 12 Pete et al 307 13 Pete et al 307 14 Pete et al 307

`` have regarded the credibility of the witnesses unless the plaintiff’s witnesses appear to be obviously lying or have broken down to such an extent that no reasonable person would place reliance upon them15. Once the defendant has closed his case, and each party has delivered his closing address, the court will usually reserve judgment in order to give the judge time to consider the matter properly.16 Once the judge has considered the matter, the parties will be informed of the date on which the judgment will be delivered. The court may hand out one of three judgments whereby one of the judgments could be absolution from the instance 17. A judgment of absolution from the instance essentially means is that neither the plaintiff nor defendant has been successful in convincing the court that the balance of probabilities favours him. This occurs in two circumstances: 1. Where the evidentiary burden is on the plaintiff , and neither the plaintiff nor the defendant has been able to establish a case or defence on a balance of probabilities 18; or 2. The result of a case depends upon the credibility of witnesses who gave contradictory evidence, and the court is unable to decide which of them is untruthful, making it impossible to decide between them.19 Where the evidentiary burden is on the defendant, however, the court will never grant absolution from the instance at the end of the whole case. In such a matter, judgment will be for the defendant if the onus is discharged and for the plaintiff if it is not discharged. With regard to a judgment of absolution from the instance in terms of s 48(c), it is an order granted either at the end of the plaintiff’s case or at the end of the whole case dismissing the plaintiff’s claim. Its effect is to leave the parties in the same position as if the case had never been brought. This means that the judgment of absolution from the instance does not amount to res judicata and the plaintiff may proceed afresh if he wishes20. 4.1.3.3 The court may hand down one of three judgments: 1. Judgment for the plaintiff 2. Judgment for the defendant; or 3. Absolution from the instance Section 48 of the Magistrates’ Courts Act sets out the various judgments that may be granted as a result of the trial of an action:

15 Pete et al 307-308 16 Pete et al 308 17 Pete et al 307 18 Pete et al 308 19 Pete et al 308 20 Pete et al 308

`` 1. Judgment for the plaintiff in so far as he has proved the same21; 2. Judgment for the defendant in respect of his defence in so far as he has proved the same22; 3. Absolution from the instance if it appears to the court that the evidence does not justify the court in giving judgment for either party; 4. Such judgment as to costs ( including costs as between attorney and client ) as may be just23; 5. An order, subject to such conditions as the court deems fit, against the party in whose favour judgment has been given, suspending wholly or in part the taking of further proceedings upon the judgment for a specified period pending arrangements by the other party for the satisfaction of the judgment24; and 6. An order against a party for the repayment of an amount of money for which judgment has been granted, in specified installments or otherwise, including an order contemplated by s 65J or 73.25 In Megan’s matter, she was awarded R75 000.00 with interests and costs. Such judgment as to costs (including costs as between attorney and client) as may be just was used in respect in Section 48 of the Magistrates’ Courts Act as costs and interest have been awarded as well. 4.1.3.4 One must first determine the manifest purpose of the order 26. In interpreting a judgment or order, the court’s intention is to be ascertained primarily from the language of the judgment or order in accordance with the usual well-known rules relating to the interpretation of documents. As in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intentions. In the Newlands Surgical Clinic27 matter, the Supreme Court of Appeal, in dealing with the interpretation of the order of the court a quo held that the flaw in the argument is that it loses sight of the principle that a court order must be read in the context of the judgment as a whole and particularly in the light of the court’s reasons for that order28. 4.2.1.1 Once a court has delivered a judgment, the matter is closed in the sense that the original court may not revisit the matter. In giving a judgment the court has exercised its jurisdiction in the case to the utmost extent possible, and its authority over the matter has come to an end 29. The Judge who delivered the decision is functus officio, and there is also the public interest in bringing litigation to finality. Once the court is functus officio, it may not alter or vary its judgment in any 21 Pete et al 309 22 Pete et al 309 23 Pete et al 309 24 Pete et al 309 25 Pete et al 309 26 Pete et al 309 27 Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic (Pty) (Ltd) & others 2012 (4) SA 484 (WCC) 28 Pete et al 309 29 Pete et al 310

`` manner. If the person who lost the case is unhappy with the result, he should take the matter on appeal or review. There are exceptional circumstances where the original court may alter its judgment. These exceptions fall into two categories, the correction of errors in a judgment and the rescission or cancellation of a judgment. When correcting errors, the court may not amend the essential substance of the judgment. Examples of errors that may be corrected by the original court are the clarification of ambiguity in the text of the judgment, a patent error or omission such as the inadvertent omission of a costs order, or a typographical error in a court order30. 4.2.1.2 A default judgment may be rescinded in the following ways: 1. In terms of rule 42(1) of the High Court Rules31; 2. In terms of rule 31(2)(b) and 31(5)(d) of the High Court rules; and 3. Under common law Rescission under rule 42(1) requires the judgment to have been granted because of an error of some kind32. Rescission may also be granted under rule 31(2)(b) or rule 31(5)(d) or in terms of the common-law, but if an error can be shown, it is not necessary for the party seeking the rescission under rule 42 to show good cause as is required with the other types of applications for the rescission of default judgments33. The circumstances under which a judgment may be rescinded under this rule are the same as those under which it may be varied and set out above34. Rule 42(1)(a) provides for the rescission of any order or judgment ‘erroneously sought or erroneously granted in the absence of any party affected thereby’. The two necessary elements are therefore an error made that affected the judgment and the absence of a party affected thereby. 4.2.2.1 Section 36 of the Magistrates’ Courts Act deals with rescission of judgments in the Magistrates’ Courts. The Court may, upon application by a person affected thereby, or, in cases falling under paragraph (c), suo moto: 1. Rescind or vary an judgment granted by it in the absence of the person against whom that judgment was granted35; 2. Rescind or vary any judgment granted by it which was void ab initio or was obtained by fraud or by mistake common to the parties36; 30 Pete et al 310 31 Superior Courts Act 10 of 2013 32 Pete et al 312 33 Pete et al 312 34 Pete et al 312 35 Pete et al 318 36 Pete et al 318

`` 3. Correct patent errors in any judgment in respect of which no appeal is pending 37; and 4. Rescind or vary any judgment in respect of which no appeal lies38. The procedure by means of which a party will make an application for the rescission or variation of a judgment in the Magistrates’ courts is set out in Rule 49(7), which requires that such applications must be: 1. Brought on notice to all parties; and 2. Supported by affidavit/s setting out the grounds on which the applicant seeks rescission or variation In terms of rule 49(1), a party who is seeking to rescind a default judgment has 20 days from the date on which the judgment came to his knowledge to serve and file the application for rescission39.Notice of the application must be given to all parties to the proceedings. He is required to show good cause why the judgment should be rescinded or alternatively the court must be satisfied that there is a good reason to do so40. 4.2.2.2 The good cause shown requirement is the same as that dealt with in detail under High Court rule 31(2)(b), and the comments made are pertinent to rescission of default judgments in the Magistrates’ Courts41. ‘Good Cause‘ has never been properly defined but it incorporates both an investigation into the existence of prima facie defence, and whether or not the defendant was in willful default and cannot show a prima facie defence42. To show a good cause, the defendant in his affidavit must explain the reasons for his default and show the existence of prima facie defence as well as satisfy the court that his default was not willful43. A magistrate has discretion in the case of rescission and is not obliged to grant it. 4.3.1

The amount referred to above is applicable to simple interest. In the absence of an agreement to the contrary, the only kind of interest that may be charged at common-law is known as simple interest44.

4.3.2

The National Credit Act45 sets limits to the rate of interest charged in respect of certain types of credit agreements to which it applies. Parties need to ensure that they do not exceed the limits provided for in the act when stipulating a rate of interest in a credit agreement; otherwise the interest rate will not be enforceable46

37 Pete et al 318 38 Pete et al 318 39 Pete et al 318 40 Pete et al 318 41 Pete et al 318 42 Pete et al 318 43 Pete et al 318 44 Pete et al 321 45 The National Credit Act 34 of 2005 46 Pete et al 325

`` 4.3.3

Once the interest due reaches the amount of the claim, it stops running. This is known as the in duplum rule. Where a partial payment has been made reduces the interest owed to an amount less than the capital amount, interest starts to run again47. Interest only stops running when it reaches the capital amount outstanding or when the whole amount outstanding has been paid in full.

4.3.4

The court may for good reason deprive a successful party of his costs, in whole or in part, with the result that the successful party will have to pay his own costs 48. When exercising his discretion to deprive the successful party of his costs, the judge will consider the following factors in connection with the successful party’s conduct: whether the successful party has made excessive demands; the conduct of the litigation; the taking of unnecessary steps or following a wrong procedure; and misconduct49.

4.3.5

Another option which is available to the court is to award costs de bonis propriis. This means that a portion or the whole of the costs of either or both the parties must be paid by one or more representatives in the matter50. If an attorney representing a client conducts his client’s case in a negligent manner, that attorney may be ordered to pay the costs of the client de bonis propriis. This rule applies to all persons who act on behalf of others in litigation.

47 Pete et al 325 48 Pete et al 327 49 Pete et al 327 50 Pete et al 327

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Bibliography TEXTBOOK S Pete, D Hulme, Du Plessis, R Palmer, O Sibanda, S and T Palmer. Civil Procedure – A Practical Guide (2018) Oxford University Press: Cape Town CASE LAW Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic (Pty) (Ltd) & others 2012 (4) SA 484 (WCC) LEGISLATION Superior Courts Act 10 of 2013 Magistrates' Courts Act, 1944 The National Credit Act 34 of 2005

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