Msizi Mhlongo | SchoemanLaw Inc   

Category: Civil Litigation and Alternative Dispute Resolution 

Introduction 

Can a default judgment that has been subject to rescission applications be appealed by a party? 

In the matter of Road Accident Fund v Gonsalves (14756/2017) [2024] ZAGPJHC 130 (7 February 2024), Judgment by default was granted against the Road Accident Fund (“the RAF”) in May 2022. Almost a year after the judgment date, the RAF launched an application for leave to appeal the default judgment, and condonation for the late filing of the application.  

The Appeal 

The RAF sought only to appeal the loss of earnings award – by far the largest part of the quantum. Ms Gonsalves raised a point in limine that it was not open to RAF to appeal the judgment when it was still open to rescission, and the court requested submissions on the issue of appealability. 

Condonation of Appeal 

Justice Yacoob (“the Justice”) considered Ms Gonsalves’ contention regarding the condonation application that the delay was unreasonable, that the RAF’s defence had been struck out in October 2021, due to its non-compliance with the rules and applicable practice directives, and the RAF did not seek to have the order rescinded, and the RAF’s assertion in its affidavit in support of the condonation application that in February 2023 it was under the impression that an application for rescission was appropriate, but its applications for rescission had been unsuccessful.  

Rescission 

The Justice noted that the success or failure of other applications for rescission was irrelevant, that each rescission application was considered on its own merits, and that RAF did not disclose how many applications for rescission it had brought, and what the reasons for the failures were. She discussed Pitelli where the Supreme Court of Appeal held that an order is not final until the court of first instance is incapable of revisiting the order, and that since an order taken in the absence of one party is open to being revisited, it is ordinarily not appealable until an application for rescission has been unsuccessful.  

The Justice considered the obiter dictum in Sparks, distinguished Moyana (relied on by the RAF), and considering RAF’s reliance on Mogorosi, she pointed out that the question at this stage was whether the order RAF sought to challenge, is at this stage final and therefore appealable – and that she was satisfied that it was not. She recorded that even if it were open to RAF as a litigant to change the status of the order by its own preference, by following the line of case law which begins with Sparks, there was no explicit waiver in the application for leave or in the affidavit filed in support of the application for condonation, and that she was doubtful that RAF could simply rely on the fact that it had brought an application for leave to ask the court to infer that it had waived a right to apply for rescission.  

Effluxion of time 

On the effluxion of time, the Justice pointed out that the RAF was as much out of time for an application for leave to appeal as it was for an application for rescission, and would have to obtain condonation either way, so that did not weigh on either side of the debate.  

The Justice noted that there may be some circumstances where it was appropriate that an order that was still open to rescission should be appealable, but she did see that any such circumstances are present in casu. The application by the RAF was dismissed with costs. 

Conclusion:  

For parties subject to litigation, it is of paramount importance to ensure that you comply with the Rules, more especially when time limits are involved, in order to avoid matters being struck off the roll and incurring a costs order.  

Msizi Mhlongo | SchoemanLaw Inc
Attorney
https://schoemanlaw.co.za/our-services/civil-litigation-and-alternative-dispute-resolution/