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[2013] ZAGPJHC 278
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Lezimin 1404 CC and Another v Scania Finance South Africa (Pty) Ltd (2010/44236) [2013] ZAGPJHC 278 (4 November 2013)
NOT REPORTABLE
THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE NO: 2010/4423
DATE: 04/11/2013
In the matter between
LEZMIN
1404
.....................................................
FIRST
APPLICANT
SCHALK WILLEM
ERLANK
........................S
ECOND
APPLICANT
and
SCANIA FINANCE SOUTH
AFRICA (PRY) LTD
......
RESPONDENT
Practice - application
for rescission of default judgment in terms of Rule of Court 42(1)(a)
– requirements - only ground
relied on alleged absence of
court’s jurisdiction to adjudicate main action.
Jurisdiction - rationes
jurisdictions - place where contract concluded and performance to be
made by way of payment within court’s
jurisdiction -
jurisdiction established
Court’s residual
discretion in application for rescission of judgment – factors
affecting-applicants authors of their
own trouble - discretion
exercised against applicants -application dismissed with costs.
J U D G M E N T
VAN OOSTEN J:
[1] The applicants seek
an order for the rescission of a default judgment that was granted
against them by Mojapelo DJP, on 23 April
2013. The respondent
opposes the relief sought. The applicants are the defendants in an
action instituted against them by the respondent
for payment of
arrear amounts in terms of four Financial Lease Agreements concluded
between them in respect of certain Scania vehicles
(the agreements).
The second applicant’s liability arises from a written deed of
suretyship in respect of the first applicant’s
indebtedness to
the respondent. The applicants defended the action and it was, after
exchange of pleadings, enrolled for hearing
on 23 April 2013. At the
trial roll call before Mojapelo DJP the applicants, in terms of a
substantive application, applied for
a postponement of the matter.
The learned Judge having heard argument refused a postponement.
Counsel for the applicants withdrew
as the legal representative of
the applicants and judgment by default was granted for payment of the
amounts as prayed for in the
summons together with interest thereon
and costs on the scale as between attorney and client.
[2] The present
application is brought in terms of rule of Rule of Court 42(1)(a).
The basis relied upon is that the default judgment
was erroneously
granted it being alleged that the court does not have jurisdiction to
adjudicate the matter. The applicants are
both perigrini of this
court. The opposing contentions advanced by counsel were based on the
provisions in the agreements providing
for payment of the monthly
lease instalments by the first applicant, as lessee, to the
respondent, as lessor. Counsel for the respondent
relied on the
provision (clause 4.6 of the general terms of the agreements) that
such payment had to be made at the domicilium
address of the
respondent, which it is common cause, is in Johannesburg. Counsel for
the applicants on the other hand submitted
that it was apparent from
the agreements that payment was to be made in terms of a debit order
authorisation by the first applicant
at its bank, which is situated
in Kimberley, and therefore not at the respondent’s domicilium.
[3] In order to establish
jurisdiction rationes jurisdictiones need to be present (Gallo Africa
v Sting Music (Pty) Ltd
2010 (6) SA 329
(SCA) para [10]). The
respondent, as I have indicated, is situated in Johannesburg. The
applicants are both domiciled in Kimberley.
That brings me to the
agreements, copies of which are attached to the respondent’s
summons. In terms of the transaction schedule
forming part of each of
the agreements, it is recorded that the initiative to enter into the
agreement emanated from the lessee,
the first applicant. It was
signed by a member of the first applicant at Kimberley, on 12
November 2007. On 14 November 2007 it
was signed at Aeroton
(Johannesburg) on behalf of the respondent. The agreement accordingly
was concluded on the date and at the
place of the acceptance of the
first applicant’s offer, being 14 November 2007 and therefore
at Johannesburg. The ratio contractus
consisting of the conclusion of
the agreement as well as performance by way of payment by the lessee
in terms thereof (Coloured
Development Corporation Ltd v Sahabodien
1981 (1) SA 868
(C) 870F), both fall within the jurisdiction of this
Court which accordingly is sufficient to endow this Court with
jurisdiction
(Geyser v Nedbank Ltd: In re Nedbank Ltd v Geyser
2006
(5) SA 355
(W) para [11]; Erasmus Superior Court Practice A1-27)).
The fact that the debit order arrangements were made at a bank
outside
the jurisdiction of this court is of no moment. The objection
raised by the applicants accordingly cannot be sustained.
[4] In
conclusion and insofar as I am required to exercise a discretion the
fact that the applicant are the authors of their own
problems in my
view militates against them (De Wet and others v Western Bank Ltd
1979 (2) SA 1031
(AD)). In addition hereto I take into account that
counsel for the applicants who appeared before Mojapelo DJP could
have raised
the special plea of absence of jurisdiction without going
in to the merits of the matter. The application must accordingly be
dismissed.
[5] In the result the
application is dismissed with costs.
FHD VAN OOSTEN
JUDGE OF THE HIGH
COURT
COUNSEL FOR APPLICANTS
…....................................................
ADVC
CREMEN
APPLICANTS’
ATTORNEYS
.....................................
VAN
DEVENTER & THOABALA
COUNSEL FOR RESPONDENT
…...............................
ADV C VAN DER MERWE
ATTORNEYS FOR
RESPONDENT
...............................
SENEKAL
SIMMONDS INC
DATE OF
HEARING
.....................................................................
4
NOVEMBER 2013
DATE OF
JUDGMENT
....................................................
.......
4 NOVEMBER 2013