Referral to Registrar

16 January 2023 20:00 by Merilyn Kader

In Auditor-General of South Africa v Accounting Officer of Gateway Airports Authority (Ltd) and Another [2022] JOL 54182 (LP), whether the claim in the default judgment was for ‘a debt’ or a for a ‘liquidated demand’.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Civil Procedure - Default judgment – referral to registrar: The Auditor-General of South Africa applied for default judgment in an undefended action against the defendants. The court questioned whether the application should not have been referred to the registrar for consideration. The applicant’s counsel responded in the negative, on the basis that the claim was for audit fees, which is not a debt or liquidated demand as required by r 31(5)(a) of the Uniform Rules of Court.

The court in Auditor-General of South Africa v Accounting Officer of Gateway Airports Authority (Ltd) and Another [2022] JOL 54182 (LP) held that r 31(5)(a) provides that: ‘Whenever a defendant is in default of delivery of notice of intention to defend or of a plea, the plaintiff, who wishes to obtain judgment by default, shall where each of the claims is for a debt or liquidated demand, file with the registrar a written application for judgment against such defendant’.

The question to be determined was whether the claim was ‘a debt’ or a ‘liquidated demand’. The term can be equated with a claim for a fixed, certain, or ascertainable amount.

In this case, the basis for the calculation of the audit fee was determined by the plaintiff in terms of s 23(1) of the Public Audit Act 25 of 2004 after consultation with the oversight mechanism and the national treasury. Thus, the amount claimed was to be ascertained by mere calculation. The amount, which could promptly and speedily be determined was not premised on a quantum meruit and was not determined by the court or what the court might regard as reasonable. It was thus ‘a debt’ or ‘liquidated demand’ and the application for default judgment, therefore, should have been referred to the registrar in terms of r 31(5)(a).

The application was struck from the roll.

Merilyn Rowena Kader
Legal Editor at LexisNexis