Leila Samodien
Justice Writer
ONE of the men involved in a scuffle that left Andrew Merryweather partially paralysed faces an “adult life of insolvency” should he have to pay more than R10 million in damages as ordered by court.
The incident took place at a petrol station in Newlands seven and a half years ago.
However, Oliver Scholtz, 25, claims that he acted in self-defence and wants a chance for a “fair hearing” in the civil suit against him, which Merryweather lodged in 2009.
Scholtz did not defend the action and has approached the Western Cape High Court in an attempt to reverse court orders granted by default in favour of Merryweather.
The court ordered in June last year that he pay Merryweather R10.29m in damages.
Arguing before Judge Pat Gamble yesterday, advocate Barbara Gassner SC, acting for Scholtz, said that the judgment would have “severe” financial implications for him if it was not rescinded.
Scholtz was still a student and once he started working, he faced a life of endless court proceedings, attachment of whatever he earned and an “adult life of insolvency”.
The court’s judgment would also place a “heavy social stigma” on him, affecting his reputation.
Advocate John Whitehead SC, acting for Merryweather, said that from 2010, by which time they had already known of a judgment against Scholtz, to 2013, Scholtz had not done anything to defend the action.
When the matter was last heard on March 20, Gassner said that Scholtz had been living in the UK when the lawsuit was instituted. She argued that he had been under the genuine misapprehension that he did not have to defend the action because the service of the summons – which was later advertised in the British press – had been “irregular”.
According to Gassner, this had come after his father had informally obtained a legal opinion on the issue. And while he had also obtained a second, conflicting opinion, Scholtz’s father had made an “error in judgement” in relying on the first opinion.
Whitehead argued that both Scholtz and his father would have known what was going on with the case given the magnitude of the matter and the amounts involved.
Judge Gamble said the “misdemeanour” appeared to have been on the part of Scholtz’s father and asked Whitehead to what extent a son could be penalised for his father’s conduct.
Whitehead said Scholtz was a major and once one became a major, one could not abdicate one’s responsibilities or rely on one’s father legally.
He also tackled the issue of Scholtz’s defence of self-defence, saying that he was “not going to prove his defence” should the judgment be rescinded.
Judge Gamble asked whether Whitehead was suggesting that Scholtz’s defence was “hopeless”.
“Effectively, yes,” Whitehead replied.