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[2014] ZAGPJHC 340
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Beck and Another v Maraschin Inc (41433/12) [2014] ZAGPJHC 340 (14 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 41433/12
DATE:
14 MARCH 2014
In the matter
between:
LESLIE JANICE
BECK
...........................................
First
Applicant
CARL
BECK
.......................................................
Second
Applicant
And
DR ENRICO F
MARASCHIN INC
............................
Respondent
J U
D G M E N T
MAKUME, J:
[1] In this matter
the applicants seek an order rescinding and setting aside the
judgment entered against them on the 6th February
2013.
[2] In the judgment
the applicants were ordered to pay the respondent a sum of R106
620,40 plus interest thereon at the rate of
15,5% from 2nd November
2012 to date of payment.
[3] It is necessary
to set out a brief narrative of certain facts and circumstances
giving rise to this litigation which have a
bearing on the question
to be answered in this application.
[4] On the 29th
September 2009 the applicant gave birth to a baby girl Isabella Beck
(“Isabella”). The baby was born
three months premature
and was admitted to intensive care due to her condition.
[5] Dr Maraschin the
sole member and director of the respondent was Isabella’s
paediatrician. He attended and treated Isabella
from date of birth
up until four months thereafter.
[6] The respondent
remitted all invoices indicating the charges and fees due, to
Discovery Health the first applicant’s medical
aid. Payments
were made however some invoices were disputed leaving the balance
owing and due to the Respondent was the sum of
R106 620,40. This
amount is still owing.
[7] The balance
outstanding is as a result of the fact that Discovery Health pays
only up to the rate that the first applicant’s
medical aid
plan covered and any differences remained the responsibility of the
member.
[8] When the
respondent served and filed the application seeking payment of the
balance of R106 620,40 the second applicant filed
an opposing
affidavit in which he raised the following defences namely:
8.1 That he was not
a party to the doctor/patient contract that was signed by his wife
the first applicant. He alleges that the
respondent’s cause of
action is based on that doctor patient contract.
8.2 That the
personal undertakings that he as second applicant made to pay the
balance of R106 620,40 do not constitute a suretyship
and
consequently no legal nexus exists between him and the respondent. He
contends that he is wrongly joined in the proceedings.
8.3 That the
agreement between the parties is a credit agreement within the
meaning of the provisions of the
National Credit Act 34 of 2005
and
accordingly the respondent should have prior to instituting the
application have sent them a notice as is required by the provisions
of
sections 129(1)
and
130
(1) of the
National Credit Act.
[9] Having filed the
opposing affidavit the matter was set down for hearing before Lamont
J on the 5th February 2013. A few
days before the date of hearing
the applicant’s attorneys withdrew as attorneys of record for
the applicants.
[10] In paragraph
[2] of his judgment Lamont J says the following:
“The
applicant’s case was that a contract was concluded between the
first and second respondents and the applicant in
terms whereof the
applicant was entitled to payment of the sum claimed for work done
and services rendered together with goods
supplied in connection
therewith. The applicant attached a detailed statement setting out
how the amount was claimed.”
[11] What is
significant is that nowhere in the judgment does the learned Lamont J
say that the applicant’s claim was based
on Annexure “FA2”
that is the doctor/patient contract. All he says is that a contract
was concluded between the first
and second respondents as well as the
applicant. He then refers to the detailed statement of account.
[12] When referring
to the detailed statement of account he was obviously referring to
Annexures “FA4” on pages 26 up
to page 47. The detailed
statement of account is issued in the name of Dr Enrico Maraschin
Inc.
[13] It is common
cause that when the first applicant’s medical aid was not
paying the balance of R106 620,40 her husband
the second applicant
through his attorneys Messrs W B Zwiegers addressed a letter to the
respondent’s attorneys dated the
6th July 2010 which letter in
part reads as follows:
“Carl has
requested me to inform you that we represent him in substantial
claims, inter alia, against the Gauteng Department
of Transport.
The matter has
reached the point where we are now in a position to enrol it which
will be done once we are out of recess on the
27th of July 2010.
Carl has indicated
that your account is the first that will be paid from the proceeds.”
[14] This letter was
later followed by a similar one dated the 29th August 2011 from
Zwiegers Attorneys to the respondent’s
attorneys which letter
reads as follows:
“In the
interim this serves to confirm our client’s intention to pay
once he is in a position to do so.”
[15] In both these
letters reference to “our client” means Carl Beck the
second respondent.
[16] On the 25th
February 2013 two weeks after judgment had been entered and a day
before the applicants filed an application for
leave to appeal second
applicant addressed a letter to the respondent and copied his
attorneys. In the letter he says the following:
“Dear
Robyn/Enrico
I was really
disappointed in the manner the matter was handled from your side
especially since we made written commitment to settle
the account.
However, in an
attempt to rectify the situation I propose the settlement of the
outstanding fees due by the end of April 2013, at
which time some of
our recoveries would have been made.”
[17] It is clear
that the “written commitment” that the applicant refers
hereto is the letter dated the 6th July 2010
and others that
followed. It is on this correspondence on which the respondent’s
claim is based not on Annexure “FA2”.
CONDONATION
[18] The applicants
seeks condonation for the late filing of this application but say
nothing in support thereof. The application
was launched in August
2013. There is no explanation why they waited six months since
judgment more so that they had withdrawn
their ill-fated application
for leave to appeal on the 19th March 2013.
[19] What is further
strange is that in paragraph 9 of his affidavit Carl Ludwig Beck says
that during May 2013 Attorney Patrick
O’Donovan attempted to
negotiate a settlement which settlement would be subject to a payment
of the judgment debt as soon
as he shall have received payment from
the Gauteng Provincial Government. This clearly shows that the
applicants had no intention
of challenging the judgment and were
prepared to pay.
[20] On the 20th
February 2013 the applicants’ attorney Messrs Zwiegers
addressed a letter to the respondent’s attorneys
in which
letter they say the following:
“Our
instructions are that our client wished to take your client up on its
offer to reach some form of settlement. We are
available to meet
during the course of next week some time and would be grateful if you
could arrange with your client so that
we may have a roundtable at
you and your client’s convenience.”
[21] The sum total
of all the correspondence from the applicants indicates that the
applicants knew of the judgment and adopted
tactics aimed at delaying
payment. On that aspect alone this application must fail.
A BONA FIDE
DEFENCE
[22] An applicant
seeking to set aside a judgment or order of court taken in his
absence needs to satisfy the court hearing the
application that he
has a bona fide defence to the plaintiff’s claim.
[23] The second
applicant in his opposing affidavit in the main action dated 5th
December 2012 did not deal with the merits of the
claim against him
and his wife. He raised two technical defences the first saying that
he did not sign the document marked “FA2”
and therefore
he was wrongly sued. He attached to his affidavit an unsigned
affidavit by his wife the first applicant.
[24] Technically his
wife the first applicant did not plead to the claim. She had no
answering affidavit on the merits. Judgment
was accordingly granted
against her in default.
[25] The second
technical defence was that the agreement between applicant and the
respondent fell within the ambit of the
National Credit Act and
that
the respondent failed to deliver a notice to the applicants as is
required by the provisions of
sections 129(1)
and
130
(1) of Act 34 of
2005.
[26] In the present
application for rescission the applicant for the first time raises a
point in limine that the respondent has
no locus standi to have
launched the application against them because document “FA2”
on which he says the cause of
action is based was signed between E F
Maraschin in his personal capacity and the first applicant. The
description of the applicant
as Dr Enrico Maraschin Inc non-suits the
respondent so argues the applicant.
[27] Once again the
applicant has failed to deal with the merits of the matter and has
resorted to technical defences. He has not
told the court what their
defence is to the claim of the respondent.
[28] In dealing with
the technical defence in terms of the
National Credit Act I
have been
referred by the respondent to a judgment of Wallis J in the matter
of JMV Textiles (Pty) Ltd v De Chalain Spare Invest
14 CC and Others
2010 (6) SA 173
(KZD). At paragraph [33] of that judgment Wallis J
says the following:
“The agreement
is that the respondent rendered his services on credit to applicants.
The expectation is that the price of
the services will be paid each
month as it falls due. There is no fee paid for this and there is no
entitlement to pay less than
the full amount due each month. The
obligation to pay interest flows from default in making timeous
payments, not from a legitimate
decision not to pay the full amount
that is due each month. There is no contemplation that respondent
will ever send a bill for
only part of what is due or at periodic
intervals. This type of transaction is wholly distinct from those
that are manifestly
intended to fall within
section 8(3)
that the
language should not be stretched to encompass it.”
[29] Document “FA2”
does not create an obligation on the respondent in terms of
sections
129(1)
and
130
of the
National Credit Act. This
defence is
accordingly without merit. The same applies to the strange new
defence raised that the respondent has failed to comply
with section
50(1)(c) of the Companies Act. Section 50 of the Companies Act
requires that a registration number of the company
should appear on
documents listed in subsection (1)(c). This does not include the
contract entered into between the respondent
and the first applicant.
[30] The applicants
have not met the requirements for granting rescission of judgment.
In my view the arguments advanced in support
of the applicants’
contentions are so far-fetched and legally untenable and require no
further consideration. The defences
were misconceived right from the
onset.
COSTS
[31] The respondent
says that in considering costs of this application same should be
punitive costs. There is merit in this request.
What remains is
whether I should grant such costs against the applicants’
attorney de bonis propriis or not.
[32] The first
applicant never signed any affidavit and yet such affidavit has been
attached to the second applicant’s affidavit
as supporting
affidavit. Secondly the affidavits of the applicant was commissioned
by his own attorney which aspect is irregular
as Mr O’Donovan
being the attorney of the applicants has an interest in the outcome
of the matter.
[33] The conduct of
the applicants’ attorneys and the role they played since the
judgment was entered is cause for concern.
In a matter decided in
the Supreme Court of Appeal heard on the 1st March 2010 known as
Francesco Pitelli v Everton Gardens Project
CC Case No 191/09 a
judgment by Nugent JA at paragraph [20] the Honourable Judge said the
following:
“The filing of
both an application for leave to appeal and an application to rescind
the order was contradictory because for
an order to be appealable it
must have as one of its features that the order is final in its
effect by which I mean that it is
not susceptible of being revisited
by the court that granted it (see Zweni v Minister of Law and Order
1993 (1) SA 523
(A) at 532J). The fact alone that it was thought fit
to file an application for rescission immediately raises the question
whether
the orders are appealable.”
[34] In this matter
not only did the attorneys file an application for leave to appeal
which was later correctly withdrawn they
proceeded to address letters
to the respondent’s attorneys proposing a settlement which
promises were never met. In the
end they proceeded with this
application based on fruitless defences and unsigned affidavits. The
attorneys deserve to be punished
for this type of shoddy workmanship
and for not advising their clients appropriately.
[35] I accordingly
make the following order:
1. The application
is dismissed.
2. The applicants’
attorneys Messrs Zwiegers Attorneys are ordered to pay the
respondent’s costs on an attorney and
client scale de bonis
propriis.
M A MAKUME
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
COUNSEL FOR
APPLICANTS P O’DONOVAN
APPLICANTS’
ATTORNEYS ZWIEGERS ATTORNEYS
2nd Floor,
Dunkeld West Centre
Corner Jan Smuts
Avenue & Bompas Road
Dunkeld,
Johannesburg
COUNSEL FOR
RESPONDENT F A DARBY
RESPONDENT’S
ATTORNEYS
FABER GOERTZ
ELLIS AUSTEN INC
Saint Andrews
Office Park
Meadowbrook Lane
Epsom Downs,
Bryanston
DATE OF HEARING 3
MARCH 2014
DATE OF JUDGMENT
14 MARCH 2014